The telcos have other reasons not to upset the U.S. government. The telecommunications industry is highly regulated by the FCC. It needs the Justice Department to approve its mergers. It has a well-established revolving door between its legal compliance teams and the law enforcement and intelligence communities. And, of course, the U.S. government is the industry’s single biggest client, with huge contracts—not least with the Defense Department. So, why rock the boat? Especially when the last time the telcos got swept up in a surveillance scandal, the NSA went to bat for them in Congress and lobbied for the FISA Amendments Act. That law, passed in 2008, not only legalized what the NSA had previously been doing illegally—it gave the telcos an unprecedented retroactive immunity to kill the lawsuits brought against them. (Full disclosure: I helped litigate one of those cases, Hepting v. AT&T, when I was a senior attorney at the Electronic Frontier Foundation.)
One final reason why the telcos haven’t sided with the Internet companies and their users in the NSA debate is that they haven’t been under the same economic pressure. Companies like Facebook and Google have hundreds of millions of international users, and so many of them are concerned about their privacy in the wake of the Edward Snowden revelations that some are projecting U.S. cloud companies will lose billions as a result. Of course, the telcos are the ones that are carrying all of the Internet traffic to and from the American Internet cloud—and also carrying masses of traffic that’s simply passing through the US. Yet the telcos haven’t been facing the same international economic pressure that the cloud companies … until now.
Now, the pressure on the telcos is building. The continuing proliferation of transparency reports from Internet companies, and the ever-growing coalition pushing for surveillance transparency and accountability, is putting the telcos inaction in stark relief. Countries like Brazil are talking about building new fiber optic lines so that they can route their traffic around the U.S., while German email providers are touting “Email Made in Germany” such that the data won’t leave the country and be transmitted through the United States. European regulators angered by AT&T’s collaboration with the NSA are resisting the company’s attempts to acquire mobile provider Vodaphone, while companies like Oracle that build the hardware on which the telcos rely are facing NSA fallout in the Chinese market.
Investors are starting to pay attention, too. Open MIC, a nonprofit organization that works to reform the media ecosystem by empowering shareholder activists, has just announced that a coalition of investors has filed shareholder proposals at AT&T and Verizon calling on the companies to publish semiannual reports detailing how often they have shared information with U.S. or foreign governments and what type of customer information has been shared; the proposals are scheduled to be voted on at the companies’ annual meetings in May 2014.
That type of pressure from investors concerned about corporate social responsibility will hopefully soon grow as a result of an innovative initiative being developed at New America in partnership with the University of Pennsylvania, the Ranking Digital Rights project. Spearheaded by senior research fellow Rebecca MacKinnon, author of the groundbreaking digital rights manifesto Consent of the Networked: The Worldwide Struggle for Internet Freedom, that project is developing a methodology for ranking the world’s most powerful information and communications technology companies based on how well their practices and policies protect human rights—and especially the rights to privacy and free expression. When it comes to ranking digital rights, transparency will be a key component.
If the telcos want to avoid a failing grade on transparency, it’s not too late. We just need one telco that’s willing to break ranks and stand with its users, to fight for its right to tell us what the government is doing, and work with us to ensure that whatever is being done is consistent with our statutory, constitutional, and human rights. Siding with its customers isn’t just the right thing for a telco to do, it’s the smart thing to do: Whichever telco is brave enough to step up will reap untold rewards in good publicity and user trust, both here and abroad. It will also join in a coalition that’s eager for new allies in its mission to restore the reputation of the US Internet industry and the privacy rights of Internet users around the world. That alliance is only going to grow, and with it, the pressure on the telcos to do something—anything—to help. And we do need that help, badly.
All we need is one good telco …
But two would be better.
Correction, Nov. 21, 2013: Due to a photo provider error, the caption on the photo in this article misidentified Pablo Chavez, Google director of public policy, as Richard Salgado's assistant.
This article is part of Future Tense, a collaboration among Arizona State University, the New America Foundation, and Slate. Future Tense explores the ways emerging technologies affect society, policy, and culture. To read more, visit the Future Tense blog and the Future Tense home page. You can also follow us on Twitter.