This article originally appeared in the New America Foundation’s Weekly Wonk. Future Tense is a partnership of New America, Slate, and Arizona State University.
On Nov. 13, I spent my morning in a hearing room on Capitol Hill talking about how I’d spent my summer: helping to build a broad coalition of privacy and free speech advocates, tech investors and trade associations, and Internet companies large and small, to press for greater transparency around the National Security Agency’s surveillance programs. The hearing was my last public appearance as the Center for Democracy & Technology’s free expression director, before starting this week in my new role as the policy director of the New America Foundation’s Open Technology Institute.
Also sitting at the witness table was a representative from Google, who, like me, was there in support of the Surveillance Transparency Act of 2013. That bill would allow companies—and require the government—to publish basic statistics about how the NSA is using its national security surveillance authorities to access information about Internet and telecommunications service providers’ customers. Also in the hearing room, at least in spirit, was everyone else in our coalition: think tanks like OTI; nonprofit advocacy organizations from across the political spectrum, from the ACLU to Americans for Tax Reform; Internet giants like Apple, Facebook, Microsoft, and Twitter; and newer Internet players like Tumblr and Dropbox.
All of them had signed the first coalition letter in July pressing for transparency legislation, and a second joint letter in September supporting the bill that Sen. Al Franken, D-Minn., introduced in response. Many of the same companies have filed briefs with the secretive Foreign Intelligence Surveillance Act Court, seeking permission to give the public basic facts about what they do—and don’t do—when the government comes calling for their users data. Yahoo is also pressing the court to release its secret legal opinion from 2008, when the company unsuccessfully challenged one of its surveillance orders. And, just a couple of weeks ago, six of the Internet giants finally took another important step that we in the civil liberties and privacy community have been hoping they would take. Putting aside the fact that they are often competitors, they issued a new letter making clear for the first time that they don’t just want surveillance transparency—they also want substantial reform of our surveillance laws to better protect their users’ privacy.
This broad and unprecedented alliance, united to demand more transparency and accountability around the NSA’s access to our personal data, stood behind me as I delivered my testimony. But do you know who didn’t have my back? Who hasn’t stepped up to support surveillance transparency, much less surveillance reform? Who, despite—or because of—being as deeply involved as anyone can be in the NSA’s dragnet, has had nothing to say other than “no comment”?
In the current debate over NSA spying, the telecommunications companies that provide all of us with our telephone and Internet service, the giant corporations like AT&T and Verizon that own the phone lines and cell towers and fiber optic cables and Internet exchange points that carry all of our data—and that the NSA is tapping into—are nowhere to be seen.
The telcos’ failure to work with the privacy community to protect their users against government overreach, in contrast with the Internet companies who’ve joined our coalition, is especially disappointing considering that they are the ones who should be helping the most.
We know, thanks to FISA court orders leaked by Edward Snowden, that the telcos are giving all of our phone records to the NSA. We also know that the telcos have never challenged the orders to hand over those records. We know—and have known for years, thanks to whistle-blowers like former AT&T technician Mark Klein—that they are letting the NSA tap into key Internet exchange points across the country. We know that those taps give the NSA direct “upstream” access to 75 percent of our Internet traffic and we know that the NSA is scanning all of our international communications for suspicious keywords. We know that the NSA, at least for a while, was hoovering up location data from the telcos cellphone networks, and we know that there’s a program code-named NUCLEON that involves surveillance of the actual content of our phone calls, though the full extent of that program is still unknown.
Yet we get nothing from the telcos. No comment, no justification, and no support, even if only on the issue of transparency. The opposite, in fact: One Verizon executive publicly mocked the Internet companies’ push or transparency as “grandstanding,” while AT&T has privately been arguing to policymakers that transparency should only be the responsibility of the government, not the companies.
It’s no surprise the telcos aren’t fans of transparency reporting by companies, even as more and more Internet companies are issuing transparency reports: Their numbers would stink. When it comes to phone records, we already know that the answer to “how many users’ data did you hand over?” will be “everyone.” Meanwhile, for Internet data, the closest to an accurate answer that the telcos can likely give is “we don’t know, we just gave the government the keys to everything.”
It’s also no surprise that the telcos don’t want to tattle on their friends in the intelligence community, since they’ve been keeping one another’s secrets since World War II. Indeed, the code-name for the AT&T Internet upstream surveillance program—“BLARNEY”—seems to be an in-joke reference to “SHAMROCK,” the infamous spying program uncovered by the intelligence investigations of the ’70s, in which AT&T’s predecessor corporation ITT secretly handed over a copy of every single telegram that was transmitted into or out of the country for decades.