A Look at the Fallout From the 2013 Snowden Leaks

The reports detailing classified U.S. intelligence operations have come fast and furious since the first stories based on the leaks from former NSA contractor Edward Snowden first began appearing in June. The fallout has been considerable, with leading players in the tech sector, lawmakers, foreign leaders, civil liberties groups and others demanding accountability. And at year’s end, with only a small fraction of the Snowden files having come to light, the story seems to be just getting started.

Here is a sampling of the tech-sector implications of the Snowden leaks, and some of the proposals to increase transparency and accountability in the government’s intelligence operations.

There is probably no sector more directly implicated in the government’s surveillance operations than tech. It had been well-known that companies like Google, Microsoft and Yahoo routinely receive requests from the government for information about certain users under court orders obtained through the Foreign Intelligence Surveillance Act (FISA). But some of the early reports from the Snowden files suggested that the government had a “back door” that provided direct, unchecked access into the companies’ data centers. What’s more, some of the news coverage implied that the tech firms had flung that door wide open, welcoming the government in to rifle through their servers.

Major Web companies have long acknowledged the importance of user trust amid lingering privacy concerns about online tracking and data sharing. Small wonder then that many of those same firms have been making their case to anyone who will listen, and petitioning the government for more authority to disclose the extent of the information they provide.

“Assertions in the press that our compliance with these requests gives the U.S. government unfettered access to our users’ data are simply untrue. However, government nondisclosure obligations regarding the number of FISA national security requests that Google receives, as well as the number of accounts covered by those requests, fuel that speculation,” David Drummond, Google’s chief legal officer, writes in a letter to Attorney General Eric Holder.

Seeking to counter the notion of an open pipeline of consumer data flowing from businesses to the darkest corners of the government, Web companies have been asking for authorizations to make more disclosures about the volume and nature of data requests they receive from the feds.

Earlier this year, Google and Microsoft filed a lawsuit in the secret FISA court asking for more disclosure authority. They would later be joined in their efforts by Facebook, Yahoo and LinkedIn.

“We believe the U.S. Constitution guarantees our freedom to share more information with the public, yet the government is stopping us,” Microsoft General Counsel Brad Smith (shown here) said in explaining the lawsuit.

Litigation in the FISA court faces an uncertain path forward. The litigants were disappointed last month when they received only a heavily redacted version of the arguments submitted by the Justice Department, which is fighting the disclosure requests. A petition by a privacy group to escalate the case to the U.S. Supreme Court was rejected.

Meantime, the firms have been taking their case to Congress, lobbying and testifying on behalf of legislative reforms to check government intelligence operations.

Google’s Richard Salgado (shown here) told a Senate subcommittee that the revelations “concerning the extent of government surveillance undermine confidence in Internet services reliant on user trust,” while threatening economic growth and global Internet governance. “These disclosures, however, provide a unique opportunity to revisit existing surveillance laws.”

As they’re working the official channels to press for more disclosure, the Web companies most concerned about the reputational hit from the government’s surveillance activities have also taken their case to the public. Since mid-year, regular posts have been appearing on corporate blogs updating the situation. But that PR campaign reached a new level earlier this month when eight companies — AOL, Apple, Facebook, Google, LinkedIn, Microsoft, Twitter and Yahoo — banded together to form the Reform Government Surveillance group and published an open letter to the president and members of Congress calling for additional checks.

“We understand that governments have a duty to protect their citizens,” they wrote. “But this summer’s revelations highlighted the urgent need to reform government surveillance practices worldwide.”

In launching that PR campaign, the inaugural participants outlined a series of principles, backed by statements of support from some of the biggest names in tech. Those principles included calls for greater transparency, oversight and accountability, and limiting the ability of the government to collect data from private-sector firms.

Google CEO Larry Page said that his company’s efforts at transparency and encrypting data were “undermined by the apparent wholesale collection of data, in secret and without independent oversight, by many governments around the world.”

Facebook CEO Mark Zuckerberg said that “there is a real need for greater disclosure and new limits on how governments collect information. The U.S. government should take this opportunity to lead this reform effort and make things right.”

The Snowden leaks began with revelations about the NSA’s wholesale collection of phone call records from Verizon, then quickly moved onto the electronic surveillance program known as PRISM, whereby the NSA obtained information about emails and other communications from firms like Google through court order. The months since have brought a steady drumbeat of new disclosures — including, embarrassingly, reports that the United States was monitoring the phone calls of foreign leaders like German Chancellor Angela Merkel.

The body of evidence was mounting. But then a report surfaced that the NSA was secretly gathering data in transit between overseas data centers maintained by Google and Yahoo, without the companies’ knowledge or permission.

Microsoft’s Smith and others cited that report as the most alarming yet.

Even before the disclosures of the NSA’s PRISM electronic surveillance program, U.S. cloud companies had been on the defensive in foreign markets, particularly in Europe, where companies and governments have suggested that data stored with American firms could be subject to government surveillance under the Patriot Act. Those competitive concerns — and reputational damage — have only been exacerbated by the latest leaks.

“Foreign companies are happily using PRISM as the latest series of clubs to beat U.S. companies over the head,” said Jake Colvin, vice president of global trade issues at the National Foreign Trade Council.

Numerous lawmakers have been critical of the NSA for its far-reaching surveillance activities, which they say are subject to minimal oversight and given essentially free rein by a rubber-stamp FISA court. In response, numerous bills have been introduced seeking to establish new checks on the government’s intelligence gathering.

Google’s Salgado testified in support of the Surveillance Transparency Act, authored by Sen. Al Franken (D-Minn.). That bill would require the government to disclose to Congress and the public more detailed information about its use of FISA authorities, while allowing companies to publish more information about the national security letters they receive.

Franken said his bill “would permanently ensure that the American people have the information they need to reach an informed opinion about government surveillance.”

In the House, similar proposals regarding government and corporate disclosures have been introduced by Reps. Rick Larsen (D-Wash.) and Justin Amash (R-Mich.), and, dealing with the corporate side, by Rep. Zoe Lofgren (D-Calif.). Amash, a leading House critic of the clandestine intelligence programs, also tried, unsuccessfully, to pass an amendment that would limit the collection of phone-call data to individuals who were the subject of an active investigation.

A more structural approach to reform came from Patrick Leahy (D-Vt.), the chairman of the Senate Judiciary Committee, who authored legislation to limit the scope and duration of court-approved data collection, among other provisions.

In the Senate, one of the most outspoken critics of the NSA’s activities has been Ron Wyden, a liberal Oregon Democrat who partnered with the libertarian-minded Ran Paul (R-Ky.), along with two other Democrats, to introduce a bill that would install an advocate to argue in opposition to the government in the FISA court, among other measures.

In late October, Leahy and Rep. Jim Sensenbrenner (R-Wis.), one of the original architects of the Patriot Act, introduced the USA FREEDOM Act in their respective chambers. The bill would put limits on bulk data collection and bring more transparency to the FISA court, among other provisions.

Numerous other bills and policy proposals have been floating around Capitol Hill to address the perceived overreach of the national security apparatus.

There is by no means a consensus on the Hill that the NSA is going too far. Two of the chief defenders of the agency are the chairs of the Senate and House intelligence committees, which assert jurisdiction over many of the issues in play.

Sen. Dianne Feinstein (D-Calif.) and Rep. Mike Rogers (R-Mich.) have been staunch defenders of the NSA, repeatedly averring that the surveillance programs are subject to rigorous judicial and congressional oversight, and arguing that they have been essential to keeping the nation safe.

“Part of the problem with where we’re at is fighting perception,” Rogers said recently. “There are multiple levels of oversight that no other intelligence service in the world has.”

The reaction to the Snowden revelations at the White House has been mixed. In his first public address of the issue, President Obama sought to reassure Americans that no one was listening to their phone calls or reading their emails. The president and aides initially touted judicial oversight of the programs and said they were operating with due restraint.

But the leaks kept coming. Eventually, Obama commissioned a review panel to evaluate the programs, which briefed senior intelligence officials in November, with a final report to be delivered this month.

Obama also recently said he would propose some restraints on the NSA, though he did not offer details.

NSA chief Gen. Keith Alexander has spoken often and publicly in defense of his agency’s activities, often echoing the congressional intelligence chairs’ view that he is battling a problem of perception. While at once insisting that the intelligence programs are essential to U.S. national security and disputing characterizations reported in the media, Alexander has been a stalwart defender of the NSA’s intelligence operations.

“Given that the threat is growing, I believe that is an unacceptable risk to our country,” he said at a recent Senate hearing. “Taking these programs off the table, from my perspective, is absolutely not the thing to do.”