NSA HQ, Fort Meade, MD

As more information regarding the NSA’s surveillance program, dubbed X-Keyscore, trickles into the public domain, technology industry titans continue their battle with the government for increased transparency of national security requests.

Until recently, the full extent of domestic surveillance was largely unknown due to a closely guarded, secret surveillance request process. All surveillance requests for warrants are heard by the U.S. Foreign Security Intelligence Court (‘FISA Court’). In these highly classified proceedings, the FISA Court hears from only the government; there are no opposing arguments. From 2001-2012 that court rejected just 10 requests out of 20,909, giving the government a 99.9% success rate. The FISA Court’s impartiality, along with its ability to effectively monitor government surveillance, is the subject of much scrutiny.

A Frontier Foundation Freedom of Information Act lawsuit resulting in the release of a 2011 FISA Court opinion helped paint a much clearer picture of government surveillance tactics. That opinion found that the government misled the court as to the extent of its surveillance program, such as collecting at least 56,000 purely domestic e-mails every year, which it deemed unconstitutional.

A flood of other previously classified information has followed in the opinion’s wake, exposing a highly invasive domestic surveillance program. We now know that U.S. phone companies are required to hand over metadata—a list of who called whom and when—to the NSA for every call made on their networks. This revelation has put technology companies on the defensive, with customers questioning the privacy of their sensitive information.

Just this week, Facebook became the first tech giant to announce SSL encryption of access to the site via web browsers and apps. This is one way to circumvent future surveillance requests, as X-Keyscore is designed to intercept unencrypted internet content. Under current regulations, which require companies to provide technical assistance to law enforcement agencies, Facebook has effectively handicapped its ability to access users’ sensitive information. In response, the Obama administration is reportedly on the brink of supporting an F.B.I. proposal to overhaul surveillance laws. That proposal makes it easier to secure a wiretap on Internet communications in an effort to keep pace with constantly evolving communications technology.

Other companies have resorted to a more dramatic course of action. Both Microsoft and Google sued the government this summer claiming the First Amendment gives them the right to disclose more information regarding the number and type of security requests. Though the parties attempted to find common ground outside of the courtroom, it would appear that conversation stalled, as Microsoft recently announced it intends to move forward with litigation. In turn, the government said it will begin releasing periodic reports on NSA surveillance activity, but it remains to be seen if these reports will contain sufficient information to appease the companies or, more importantly, their disgruntled customers. If the lawsuit is any indication, Microsoft is not optimistic.

– Kevin Saunders

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