from vice.com: Revelations about the National Security Agency's most controversial
surveillance program, which centers on the bulk collection of hundreds
of billions of records of Americans' phone conversations, were quickly
greeted with calls for reform by major internet powerhouses like Facebook, Google, Microsoft, and Yahoo last year. But all four
companies, along with dozens of other major tech firms, are actively
opposing an initiative to prevent NSA spying known as the Fourth
Amendment Protection Act, leaning on secretive industry lobbying groups
while they profess outrage in official statements.
Virtually immediate public condemnation of government spying put the
industry in an uncomfortable position when the Snowden leaks began
pouring out in June 2013, and in carefully written responses to news
reports claiming that they'd cooperated with the now notorious PRISM apparatus, these tech companies emphasized their compliance with
existing laws that require them to hand over user data under certain
"When governments ask Facebook for data, we review each request
carefully to make sure they always follow the correct processes and all
applicable laws, and then only provide the information if [it] is
required by law," Mark Zuckerberg, the CEO of Facebook, wrote in a blog post last June. "We will continue fighting aggressively to keep your information safe and secure."
Statements like this suggest Zuckerberg and his industry peers would
support legislative efforts to rein in surveillance, and it's true that
they've called for reform in letters to the Senate Judiciary Committee
applauding a bill known as the USA Freedom Act. Google, Facebook, and
six other tech giants have even hired a firm that claims to fight NSA surveillance on their behalf.
The real action, however, has been much subtler, with the industry
wielding its influence behind closed doors using two lobbying groups to
oppose certain restrictions on internet surveillance: the IT Alliance
for Public Sector (ITAPS) and the State Privacy and Security Coalition
(SPSC). A look at the actions of these two groups suggests that the
companies want reform, sure, but only on terms that don't affect their
In particular, VICE has uncovered that ITAPS and SPSC have sent letters
to politicians lobbying against the Fourth Amendment Protection Act, a
wide-sweeping bill that would limit the NSA’s ability to read private
electronic communications without a warrant.
Anti-surveillance bills have been introduced over the past year in more
than half the states in the union, ranging from narrow laws that would
require warrants for location data and email to more sweeping efforts to
fight back against federal intrusions by outlawing cooperation with
government agencies that engage in electronic-data collection without a
warrant. The Fourth Amendment Protection Act, which has been introduced
in more than a dozen states, denies state resources to federal agencies
that collect electronic data without a warrant, and to companies that do
the agencies’ dirty work for them. Drafted last year by a small group
of nonpartisan legal activists affiliated with the Tenth Amendment
Center and the Bill of Rights Defense Committee, the bill is a
grassroots attempt to force the NSA to change its data-collection
practices—a position that has since been endorsed by the president and
members of Congress, albeit in more limited form.
"I think this bill is in the finest traditions of state governments
opposing federal encroachments," said Bruce Fein, a former associate
deputy attorney general and general counsel to the Federal
Communications Commission at a March hearing in Maryland. "It's
important to remember that the Fourth Amendment right to privacy was the
spark of the American revolution."
State legislatures around the country have held a number of hearings on
the bill, including one last month in Maryland. During these hearings,
groups representing law enforcement and district attorneys have
complained that the proposed legislation is too broad and would hamper
criminal investigations and prosecutions. But corporate adversaries of
the act have been conspicuously absent. They haven't engaged in a public
debate about the law, such as the one Google’s Larry Page called for during his appearance at the TED 2014 conference in Seattle.
In states such as California, Tennesse, and Missouri, state legislators
aren't required to discole their contacts with industry front groups
under existing public records laws. When I tried to verify which
government officials have been contacted by ITAPS and the SPSC, elected
officials were naturally reluctant to acknowledge them. Two
lawmakers—State Senator Stacey Campfield, a Republican from Tennessee,
and State Senator Joel Anderson, a Republican from California—indicated
they had not been contacted by the groups, though documents obtained by
VICE confirmed that they had both received letters from ITAPS.
Only one lawmaker, State Senator Ted Lieu of California, voluntarily
provided a copy of the letter he had received from ITAPS, a division of
the Information Technology Industry Council (ITI). Founded in 1916, ITI
claims to be the tech industry's oldest trade association. It describes
itself as the "premier advocacy and policy organization for the world’s
leading innovation companies" and prides itself on providing "creative
solutions and policy advocacy that advance the development and use of
technology around the world." In addition to the internet giants, the 56
members of ITI listed on its website include Apple, Dell,
Hewlett-Packard, Intel, IBM, Oracle, and Samsung.
In a February 20 letter to State Senator Lieu, Carol Henton, a vice
president of ITAPS, said that the anti-surveillance bill would have
"negative implications for companies that are seeking to make
manufacturing and business investments in the state of California."
Henton specifically objected to a provision of the bill that barred
state agencies, employees, and contractors from using public funds to
engage in any activity that aids the federal government from collecting
any individual's electronic data without a warrant. "Many
California-based companies provide technology goods and analytic
services which are important to the provision of national and homeland
security for U.S. citizens and this would seem to unnecessarily
jeopardize their ability to compete for business with the state or
political subdivisions," Henton wrote.
Henton met with Lieu's office in the first week of April. In an
interview responding to some questions I had about the meeting, Lieu
said that Henton and others appeared to be misinterpreting the bill, but
added that he has been contacted by multiple companies and stakeholders
and that he was going to amend the bill to reflect their concerns.
James Halpert, general counsel for the SPSC, said in an interview that
it wasn't fair that companies that complied with requests from the
NSA—as is required by existing law—would be barred from state contracts.
"The bill would place many of our members in an impossible, Catch-22
situation—be held in contempt of court or be disqualified from contracts
with the State of Arizona or any political subdivision," he wrote in a
February 10 letter to State Senator Kelli Ward of Arizona. Formed in
2008 with the goal of harmonizing state and federal legislation, the
SPSC includes AT&T, Verizon, Comcast, Cox Communications, and Time
Warner Cable, along with Facebook, Google, Microsoft, and Yahoo. Members
discuss state legislation in a weekly call with Halpert.
In his letter, Halpert warned that the bill would have unintended
consequences. "For example, if the Arizona state government or any
locality uses Microsoft Outlook or Google email services, it would not
be able to continue doing so under SB 1156 (Arizona's version of the
Fourth Amendment Protection Act) because both companies are legally
required to provide evidence to the federal government. Instead, Arizona
and its subdivisions would have to cease using those services and find
new—potentially more expensive—providers," he wrote.
Michael Maharrey, a spokesman for the Tenth Amendment Center,
said Halpert's concerns could be addressed relatively easily with an
amendment that clarifies that the bill would not apply to companies that
were forced to provide user data in response to a court order. But
Henton's letter indicates the tech companies’ objections run much
deeper. "ITAPS is essentially opposed to the bill because it will do
what the bill is intended to do," Maharrey said in an interview. "The
intent of that section is to stop the companies from cooperating with
the NSA and violating our civil liberties. We want companies to make a
It's not a choice the companies themselves care to make. Principles
such as requiring the government to obtain a search warrant based on
probable cause to access a person's private communications or documents
stored online sound great in the abstract, but not, apparently, at the
expense of achieving traditional business goals.