Document Accidentally Filed Publicly Reveals Google Fighting Back Against Government Snooping

from the national-security-letters dept

For many years we've been highlighting how the federal government (mainly the FBI) has widely abused the "National Security Letter" (NSL) process to get information on American citizens with almost no oversight. Part of the issue is that NSLs include a complete gag order, barring recipients from telling anyone about them. It's been very rare for anyone to challenge them, and doing so is risky in and of itself, since it involves having to break that gag order. There have been a very few examples of companies fighting back against the NSLs, and whenever we hear about it, it tends to be done by an anonymous company, since they can't even name themselves. The only previous instance I can recall of it being known who fought an NSL was Nicholas Merrill, the head of Calyx Internet Access, who was only able to admit his role in fighting an NSL years later. He talked about how he'd be involved in conversations with people about the "anonymous" ISP fighting NSLs and couldn't even indicate that he was the guy being discussed in that very conversation.

The last few weeks have been quite interesting in the world of NSLs, however. As we noted, a few weeks ago, a court in California ruled that NSLs were unconstitutional. And, now, it's come out that Google appears to be fighting an NSL, potentially in response to that very ruling. Of course, it appears that this news of Google fighting back wasn't supposed to be public either. Bloomberg broke the story after spotting a motion from Google that hinted strongly at what was going on. That motion was briefly available via PACER, but since the Bloomberg story came out, it has been put under seal by the court. Of course, even though Bloomberg (for reasons that escape me) chose not to release the document itself, plenty of others have gotten a copy from before it went under seal. You can see it at the link above or embedded below.

The motion itself doesn't directly reveal that much -- but does tell you just enough to show that Google is likely fighting an NSL. The document itself is not the "petition" in question, but rather a motion to be able to file a petition under seal. Ordinarily, you would expect the motion to be filed under seal as well, which is where someone messed up, letting this out. However, the motion reveals that the petition Google is seeking to file is to "set aside a legal process ... pursuant to 18 USC 3511 (a) and (b)." That law says that an entity can petition the court to set aside a request for information, including a national security letter, "if compliance would be unreasonable, oppressive, or otherwise unlawful." It also notes that it is requesting to file this petition under seal as required by 18 USC 2709(c)(1), which is the part of the law about keeping NSLs secret.

Going through all of this, it strongly suggests that Google has responded to the ruling from a couple of weeks ago by pushing back against NSLs, pointing out that a court has ruled NSLs illegal, and filing a petition against at least one (and perhaps more) NSLs to let the court know that, under 3511, complying with the NSL would be "otherwise unlawful" according to that court ruling. It's worth noting that this motion and petition are before the same judge, Susan Illston, who declared the NSLs illegal in that case a few weeks ago. Unfortunately, we may never know how the court responds to the petition itself, since I imagine the results of this will be under seal as well. The court ruling from a few weeks ago declaring NSLs illegal did stay that decision pending appeal, so a court may have leeway to say that existing NSLs can proceed, but you could also see a court recognizing that it need not just allow such a rubber-stamping to move forward.

Either way, even if it was an accidental leak, it's good to see that Google is using this as an opportunity to fight back against NSLs. Hopefully, this means that other companies are doing the same thing as well.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Ninja (profile), Apr 5th, 2013 @ 4:46am

    Sad we have to rely on accidents to know what's going on behind the Govt iron curtain eh?

    Still, I suppose this is part of the "Do no evil" mantra that still works at Google. Good for them.

    The proper course now would be for all superior instances uphold the decision (NSL are unconstitutional). I won't hold my breath though since it's not aligned with the Govt interests (moar surveillance, moar powah!).

     

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    Anonymous Coward, Apr 5th, 2013 @ 6:20am

    "It's been very rare for anyone to challenge them, and doing so is risky in and of itself, since it involves having to break that gag order."

    That should be illegal right there. What if they had such rules for every offense? That would make situations like this possible.

    Cop: You owe us $10,000 for going over 50 miles over the speed limit on the highway.
    Man: But I don't even own a car, or have a driver's license, I ride the bus and train.
    Cop: Sure you do, you pay up of you'll go to jail.
    Man: No I won't, I'll fight this baseless charge in court and win.
    Cop: Oh, well then you'll get yourself into even more trouble, since you'll have to break the gag order associated with this fine, which will get you a few years in jail.

     

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  3.  
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    Anonymous Coward, Apr 5th, 2013 @ 6:25am

    Document Accidentally Filed Publicly Reveals Google Fighting Back Against Government Snooping

    I wonder what's in it for them?

     

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  4.  
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    Anonymous Coward, Apr 5th, 2013 @ 6:30am

    Re:

    * looks at comment *

    * rubs chin *

    I wonder what's in it for him...

     

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  5. This comment has been flagged by the community. Click here to show it
     
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    out_of_the_blue, Apr 5th, 2013 @ 7:01am

    Not verifiable, but Mike swallows it hook, line, and sinker.

    Here I've fixed it for you: "just enough to give the appearance that Google is likely fighting" on the side of truth and justice.

    Try to have a little suspicion of mega-corporations an their public relations efforts, people. You know perfectly well that Google is spying on you 24/7; a mere hint of its possible push-back against the security state isn't enough to offset that Google is part of it.

     

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  6.  
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    Anonymous Coward, Apr 5th, 2013 @ 7:09am

    Re: Not verifiable, but Mike swallows it hook, line, and sinker.

    Are they still doing construction on your bridge? We really need to start paying road construction workers salary instead of hourly.

     

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  7.  
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    Anonymous Coward, Apr 5th, 2013 @ 7:44am

    Re:

    The gag order is not for cops, but rather the three letter pasta of government. When that is said, the who watches the watcher is extremely relevant. It should be the elected politicians and ultimately the president, but there are all kinds of kinks on the way there, making the bureaucrats writing up on the actions the true watchers. It is unfortunate, but there is a need for "some" secrecy in "some" situations.

    The ACTA-leaks, Wiki-leaks and NSL-leaks are likely on the wrong side of one of the somes for most people though and far worse: When defining the rules for secret service operations, the politicians lack the specific knowledge about what they vote on and since nobody wants to be bound by laws, the briefs from the secret services will go for max maneuvering room and what politician would be stupid enough to vote against such a briefs recommandations?

     

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  8.  
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    Chosen Reject (profile), Apr 5th, 2013 @ 7:47am

    Re: Not verifiable, but Mike swallows it hook, line, and sinker.

    Don't try to act like you're some anti-corporate populist. There's a huge difference from someone willingly giving their information to a 3rd party and the government forcing information out of that 3rd party let alone topping it off with an unconstitutional gag order.

    You'd love nothing more than a government that had more power. That's why you think "Hitler did a lot of good". No, I'm not accusing you of supporting the holocaust. I'm sure you were referencing the time before World War II, when the only thing people could say about Hitler was that he was the penultimate fascist. So keep saying that you're a populist. We all know you aren't, because being a liar and a hypocrite is par for the course with you.

    You are not a populist, you are not looking out for the little guy. You look out for the government and corporations with government granted monopolies. You seek to uphold their power, probably because that's what you wish you had.

    Go ahead, continue to ignore me. We can see right through you blue.

     

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  9.  
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    kenichi tanaka, Apr 5th, 2013 @ 7:49am

    I wish federal authorities would send me an NSL. I would deliberately reveal the contents of the NSL just to piss them off. What will they do? Send me to Vietnam?

    :rofl:

     

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  10.  
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    Anonymous Coward, Apr 5th, 2013 @ 8:00am

    Re: Not verifiable, but Mike swallows it hook, line, and sinker.

    "Try to have a little suspicion of mega-corporations an their public relations efforts, people."

    Like the copyright-stealing mega-coporations you shill for, boy?

     

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  11. This comment has been flagged by the community. Click here to show it
     
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    Anonymous Coward, Apr 5th, 2013 @ 8:21am

    Re: Not verifiable, but Mike swallows it hook, line, and sinker.

    More desperation. Pretending that the biggest spy this side of China is actually concerned with user privacy. Way to lick the hand that feeds you, Masnick.

     

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  12.  
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    Suzanne Lainson (profile), Apr 5th, 2013 @ 8:58am

    Exploring Google's role

    According to Bloomberg's article, "U.S. District Judge Susan Illston yesterday granted Google’s request to seal documents in the case."

    So Google wants the documents sealed.

     

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  13.  
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    Anonymous Coward, Apr 5th, 2013 @ 9:18am

    Good for Google, now they could stop selling out others rights too.

    https://torrentfreak.com/youtube-deal-with-universal-blocks-dmca-counter-notices-130405/

    I wonder if people should sue Google for ignoring DMCA counter notices.

     

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  14.  
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    AC Unknown, Apr 5th, 2013 @ 10:05am

    Re: Re: Not verifiable, but Mike swallows it hook, line, and sinker.

    Shut up, troll.

     

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  15.  
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    Chosen Reject (profile), Apr 5th, 2013 @ 10:59am

    Re: Re: Not verifiable, but Mike swallows it hook, line, and sinker.

    Google's not a spy. They're a company that offers services in exchange for your data. They aren't doing it surreptitiously. Everyone knows that Google gets your search history, youtube viewing history, has access to your emails, etc. There's no sneaking around going on. They provide a service, and your use of that service provides them information about you. Are airlines spying on me when they ask me for the name to put on my travel ticket? Are grocery stores spying on me when I willingly use the rewards card? Is my bank spying on me when they record all transactions that occur in my accounts?

    Here Google is trying to keep the government from getting the data that people gave to Google. That's not spying. That's being concerned with user privacy. People gave that data to Google for Google, not for the government.

    Do you even know what a spy is?

     

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  16.  
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    Suzanne Lainson (profile), Apr 5th, 2013 @ 11:07am

    Re: Re: Re: Not verifiable, but Mike swallows it hook, line, and sinker.

    Here Google is trying to keep the government from getting the data that people gave to Google. That's not spying. That's being concerned with user privacy. People gave that data to Google for Google, not for the government.

    Let's say Google treats government as a customer. Let's say Google will provide data to the government for a fee. And maybe the government (as a customer) says, "We are looking for people that fit this profile. Find them for us and we'll pay you quite well."

    And let's say, so Google can avoid dealing directly with the government, the government hires a different company to collect that data from Google, and that intermediary provides it to the government.

    As I read about government contractors, spying, and security, my sense is that private industry and the US government are so inter-related that it is hard separate them out.

     

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  17.  
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    Chosen Reject (profile), Apr 5th, 2013 @ 11:45am

    Re: Re: Re: Re: Not verifiable, but Mike swallows it hook, line, and sinker.

    Let's say that the US Government comes directly to Google and pays a fee for people that fit a profile. How is Google a spy in that case? They provided a service in exchange for data from the users of that service, that exchange being publicly known. If Google's privacy policy states that they are willing to sell user data to a buyer, then what's the issue? If Google's privacy policy says they won't sell user data to a buyer, then sue them for breach of contract.

    Changing it from government to a company secretly hired by the government doesn't change the above paragraph at all. Google is still not the spy. If I tell a friend something about me and I know that my friend tells info about me to anyone who will pay him, then he's not exactly a spy. Why is Google being a spy here?

    It's all very clear and out in the open what data you are giving to Google and what service you get in exchange. If you don't like that, don't use Google. But that doesn't turn them into spies. If their data collection was surreptitious, then sure, but it's not. It's a pretty crappy spy who says "I collect your information to sell to anyone willing to buy it".

     

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  18.  
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    Suzanne Lainson (profile), Apr 5th, 2013 @ 11:58am

    Re: Re: Re: Re: Re: Not verifiable, but Mike swallows it hook, line, and sinker.

    Google is still not the spy. If I tell a friend something about me and I know that my friend tells info about me to anyone who will pay him, then he's not exactly a spy. Why is Google being a spy here?

    What Google hasn't done, to everyone's satisfaction, is to be totally transparent about what it collects and what it does with that data. Whether you want to call that spying or something else, it is still a privacy issue.

    I'll point you to this as just one example.

    POWER-CURVE SOCIETY: The Future of Innovation, Opportunity and Social Equity in the Emerging Networked Economy | The Aspen Institute: "Shane Green of Personal said that when he talks to people at large Internet companies that gather lots of personal data, he is 'amazed' at their resistance to disclosing how they capture data, what they do with it and how much money they make from it. 'They sound just like Ma Bell from way back,' said [Michael Fertik, Founder and Chief Executive Officer of Reputation.com]. 'They have absolutely no interest in talking about privacy. Why won’t [these companies] open up and talk about how they capture data and what they do with it? Because they’re controlling things in a way that benefit them and not everyone else.'”

     

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  19.  
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    John Fenderson (profile), Apr 5th, 2013 @ 12:23pm

    Re: Re: Re: Re: Re: Not verifiable, but Mike swallows it hook, line, and sinker.

    If I tell a friend something about me and I know that my friend tells info about me to anyone who will pay him, then he's not exactly a spy.


    Hmmm, I would say he is.

    Perhaps it's made more clear by avoiding the use of the emotionally-laden term "spy". Instead, let's say "intelligence gatherer". Your friend would certainly be that.

     

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  20.  
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    Chosen Reject (profile), Apr 5th, 2013 @ 1:09pm

    Re: Re: Re: Re: Re: Re: Not verifiable, but Mike swallows it hook, line, and sinker.

    A spy is an information gatherer that does their gathering in secret. Google and the friend (disclaimer: not a real person) aren't spies. If I know, they gather information, then they aren't spies (unless I know without them knowing that I know, but that's not the case here). There's no question that Google gathers information about its users. I'm not trying to defend their data gathering. Calling them a spy is simply using an emotionally-laden term that doesn't apply simply for the emotions it evokes. It's incorrect.

    I also wouldn't use the term intelligence gatherer. Information or user data? Sure. But intelligence is linked to political or military information. Google might collect information about it's users that is useful for those purposes, but that's not why Google is collecting it.

    It's the way the debate is framed that I'm having a problem with. Here we have a case where Google is pushing back on giving up customer info to the government, and yet they are being called a spay and being accused of not caring for customer privacy because of that. Those accusations aren't backed up by the article at hand. If the AC that made the accusation has some data to back it up, he is welcome to include it here, but he didn't include any evidence. This article is a refutation of his accusations, therefore I'm calling him out on it.

     

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  21.  
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    Suzanne Lainson (profile), Apr 5th, 2013 @ 1:20pm

    Re: Re: Re: Re: Re: Re: Re: Not verifiable, but Mike swallows it hook, line, and sinker.

    A spy is an information gatherer that does their gathering in secret.

    If Google is gathering information and we know that they are doing it and if the government is gathering information and we know that they are doing it, then presumably neither are spies.

     

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  22.  
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    John Fenderson (profile), Apr 5th, 2013 @ 1:36pm

    Re: Re: Re: Re: Re: Re: Re: Not verifiable, but Mike swallows it hook, line, and sinker.

    A spy is an information gatherer that does their gathering in secret


    I disagree, but Susan expressed my sentiment better than I could -- by this definition, almost nobody spies.

    Any entity that is gathering data on me and using that data in ways that I do not control is spying on me. Google spies on me. So does my bank, grocery store, and pretty much anybody I do business with in this day and age.

    But intelligence is linked to political or military information.


    This is incorrect. "Intelligence gathering" is a term commonly used in business as well.

    Where we agree is that the AC is unfairly attacking Google in an article that points out signs that Google may be doing the right thing.

    But I still think it's completely fair to characterize what Google does as spying. It's inflammatory, yes, but accurate.

     

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  23.  
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    John Fenderson (profile), Apr 5th, 2013 @ 1:36pm

    Re: Re: Re: Re: Re: Re: Re: Re: Not verifiable, but Mike swallows it hook, line, and sinker.

    My apologies to Suzanne for calling her Susan. :)

     

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  24.  
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    Marvin K. Mooney, Apr 5th, 2013 @ 10:15pm

    Re: Not verifiable, but Mike swallows it hook, line, and sinker.

    "If Google is gathering information and we know that they are doing it and if the government is gathering information and we know that they are doing it, then presumably neither are spies."

    What?

    Everyone knows (or ought to know) that Google is collecting data. Given the law in question, how would anyone know that the government is doing so? The whole point of the article is that the government is apparently trying to obtain access to the data collected by Google without anyone knowing about it. In essence, the FBI could be forcing Google to spy for them, while using this highly suspicious law to prohibit Google from telling anyone what is happening. They wouldn't even be allowed to put a heads-up in their terms of use (e.g., "Watch out, valued consumers, we've been co-opted by the FBI against our will"), without risking federal prison sentences.

    I'm no conspiracy theorist, but how naive do you have to be to think that the government isn't the bad guy here?

     

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  25.  
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    Suzanne Lainson (profile), Apr 5th, 2013 @ 10:43pm

    Re: Re: Not verifiable, but Mike swallows it hook, line, and sinker.

    Everyone knows (or ought to know) that Google is collecting data. Given the law in question, how would anyone know that the government is doing so?

    But people do point out that the government is collecting data.

    Private companies boast to potential advertisers about all the info they have collected on users. If advertisers have access to that info, presumably government does too. If private companies are collecting data and selling data, whatever data they have presumably can be obtained by government, one way or another.

    The fact that companies like Google collect data means the data is available. Maybe the companies shouldn't be saving it. Then there would be nothing to give to government.

     

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  26.  
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    Suzanne Lainson (profile), Apr 5th, 2013 @ 10:59pm

    Re: Re: Re: Not verifiable, but Mike swallows it hook, line, and sinker.

    Think about this.

    In the old days, telephone companies connected people by phone, but could say that they didn't know what was in those calls. They did have records of which numbers placed calls to which numbers, but their business wasn't to eavesdrop on those conversations.

    But with companies like Facebook and Google, they do eavesdrop and they go even further by actually selling the data within that content. Google knows what's in your email. It knows what you search for if you don't go out of your way to hide it. It keeps track of you via cellphone. Facebook these days knows not only what you do within its boundaries, but now, with some of the deals it has cut, what you do off-line, too. It knows how you use your credit cards, what you buy, etc.

    Facebook, Google, and the like are invading our lives to a degree that so far beyond what the government does that I don't think you can limit your concerns to government. These companies are basically doing the government's job for it. Sure, we can complain about government actions, but I think the government will just switch more of its operations to private contractors and collect what it wants that way.

    CIA Presentation On Big Data - Business Insider: "'You're already a walking sensor platform,' Hunt said, referring to all of the information captured by smartphones. 'You are aware of the fact that somebody can know where you are at all times because you carry a mobile device, even if that mobile device is turned off. You know this, I hope? Yes? Well, you should.'"

     

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  27.  
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    Suzanne Lainson (profile), Apr 5th, 2013 @ 11:39pm

    Let me put it this way

    My assumption would be that whatever I do online can make its way back to the government. The idea that Google is somehow shielding me from the government doesn't make sense to me since I assume that Google is compiling its own file on me.

    As Eric Schmidt implied, Google's job isn't to protect you.

    Top 10: The Quotable Eric Schmidt - Digits - WSJ: "In a December 2009 interview with CNBC’s Maria Bartiromo, responding to questions about Google’s privacy policies: 'If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.'"

     

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  28.  
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    Suzanne Lainson (profile), Apr 7th, 2013 @ 9:58am

    To get you thinking about this

    If people only protest government gaining access to private info, then they have created a loophole big enough to drive a truck through.

    If it is okay for private companies to compile reams of info on people and then be able to turn around and sell it to whomever they want or to partner with and share the info with whomever they want, then all government has to do is to work with private companies.

    The private/government distinction is arbitrary as long as one approves of whatever is done in the name of private enterprise.

    If it is okay for private companies to have no restrictions whatsoever on monitoring people and collecting their data (and not being forced to openly disclose they are doing that and what they are doing with that data) then the private companies can be the de facto intelligence gathers for the world. Government is entirely unnecessary in the process. And, for that matter, countries can privatize their entire security operations if they want (that's what private security companies and mercenary armies are for). Eliminating government from these various operations does not mean the system becomes more pure. You can eliminate taxes to pay for government, but if you don't put any restrictions on what private companies do, then wealthy people can create privately run communities with their own guards, etc.

     

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  29.  
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    Suzanne Lainson (profile), Apr 7th, 2013 @ 12:59pm

    Re: To get you thinking about this

    I'll spin this scenario out a little more. The future, as many foresee, is a network of devices. So everything you use will be collecting data and providing it to a central system. The idea that you can just avoid posting within Facebook or not using Google will be irrelevant if your car, your phone, your energy systems, your health care, your money, and the like are all feeding into a central data collection system. You would have to retreat from modern devices altogether to avoid being monitoring.

    So we really need to have a bigger question about monitoring in general, how that info is being used, who has access to it, and so on. A private system, without any supervision or accountability whatsoever, can pretty much do what it wants with everything it gathers. Companies can pool data so that all details of your life can be centralized and analyzed.

    My concern is the focus on government surveillance is being done by data collection companies to deflect scrutiny from what they are doing. It's like politics. "We'll tell the masses that the enemy is gay people or the poor so they don't pay attention to what we are doing."

     

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  30.  
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    Suzanne Lainson (profile), Apr 10th, 2013 @ 12:04pm

    How the game is played

    People are bought and sold by private companies. The info is available. The private/government distinction isn't that big a deal as long as the info is collected and provided for a price. And consumers don't know when they sign up for something how that info will be used or who will have access to it.

    Google sold Frommer’s Travel — but kept all the social media data — paidContent: "In other words, Google is keeping all of the followers that Frommer’s accrued on Twitter, Facebook, FourSquare, Google , YouTube and Pinterest. These thousands — or more likely millions — of accounts are valuable because they represent a huge collection of serious travel enthusiasts."

     

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  31.  
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    Suzanne Lainson (profile), Apr 10th, 2013 @ 3:42pm

    This is how private companies see the future

    Whenever I say that it's private enterprise that's actually doing the surveillance, it's based on what companies proudly say they are doing or can do. Here's another example. This is a quote from Jan Jonk, CEO and Interaction Designer at Dreams of Danu.

    Why Is Angry Birds Addictive? Helsinki Pitches to Be a ‘Neurogaming’ Hotspot - Tech Europe - WSJ: “Connect Google glasses to a headset and you have a whole different beast. Imagine walking around a city with that on and seeing an overlay of how everyone around you is behaving in their minds. Are they relaxed, or stressed? And you could actually see that. Instead of seeing someone’s Facebook status, you could see information about what people’s minds are doing. There’s a lot you could do with that data.”

     

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  32.  
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    Suzanne Lainson (profile), Apr 10th, 2013 @ 4:58pm

    Re: Re: Re: Re: Not verifiable, but Mike swallows it hook, line, and sinker.

    Buy Signal: Facebook Widens Data Targeting - WSJ.com: "On Wednesday, Facebook officially plans to roll out a new advertiser tool to help advertisers directly target Facebook users based on their offline spending history.

    "The tool marries what Facebook already knows about people's friends and 'likes' with vast troves of information from third-party data marketers ... That includes data on the Web pages that consumers visit, the email lists they have signed up for, and the way they are spending money online and offline."

     

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