Though Wrong About 'Treason', Yahoo's Marissa Mayer Shows Why It's Hard To 'Just Say No' When The NSA Comes Calling

from the that's-not-true dept

We were just having a discussion in our comments about how companies should respond to NSA (and other law enforcement) requests for information. Many of our commenters take the extreme positions that companies should never abide by such requests and should always reveal them publicly. I tend to take the view that this is a counterproductive approach that is much more likely to destroy a company and have the execs end up in jail. So, I can kind of see where Yahoo CEO Marissa Mayer is coming from when she was asked about the NSA efforts and falsely stated it would be "treason" to disobey:
"Releasing classified information is treason. It generally lands you incarcerated," she said, clearly uncomfortable with the turn of the conversation.
She repeated that claim again later, so it wasn't a one-off thing:
"I'm proud to be part of an organization that from the very beginning in 2007, with the NSA and FISA and PRISM, has been skeptical and has scrutinized those requests. In 2007 Yahoo filed a lawsuit against the new Patriot Act, parts of PRISM and FISA, we were the key plaintiff. A lot of people have wondered about that case and who it was. It was us ... we lost. The thing is, we lost and if you don't comply it's treason."
First off, let's get this out of the way: she's wrong. It's not treason. Not by any stretch of the imagination. Treason is defined in 18 USC 2381, and revealing classified info isn't there:
Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.
Releasing classified information to the public is not covered. She is right that Yahoo fought a key FISA court lawsuit and lost -- and she's right that if Yahoo didn't comply, it (and its executives) would be in serious trouble, but not treason-level trouble.

That said: this does raise a serious question about what companies can do. I know that many don't trust any other process to get this information out there. And, like everyone else, I'm happy that some individuals such as Ed Snowden and Chelsea Manning had the courage to blow the whistle and reveal government misdeeds. And I'd likely support other individuals and companies that choose to take a stand and reveal government wrongdoing. But it's a step too far to claim that it's a requirement when it's not your life on the line. And, for many companies it's not hard to recognize that there are strategies that are likely to be much more effective than flat out breaking the law. Doing so would not just open them up to a lawsuit that would be expensive, but would also open them up to being tarred and feathered by a large portion of the population. And that would likely make any "statement" they were making much less effective.

Even Lavabit, which many of us respect for choosing to shut down in the face of a government order, has not revealed the nature of that order, knowing that doing so would be monumentally stupid in the long run and counterproductive.

Strategy involves thinking multiple moves ahead, not just making the one big move upfront. That's how you lose. These fights and the efforts to stop government surveillance will die an early death if companies just flat-out ignore FISA Court orders. First off, many of them are legit, even if some people don't want to recognize that. But, more importantly, there are multiple ways you fight back against these programs, and blowing the entire strategy upfront by publicizing a single request like that is almost certainly destined to backfire. Snowden didn't just reveal the first document he came across. He planned out a detailed strategy. Assuming companies should blow a ton of goodwill and the power to effect real change by revealing the first FISA Court order that comes along, even if it's legitimate, is a quick way to destroy the company, the lives of execs, and do little to create actual change.

Marissa Mayer is wrong to claim that it's treason, but she's right that there are limits to what a single company can do. Yes, we can hope that more companies fight back against more secret orders, but at some point reality has to be a part of the discussion.


Reader Comments (rss)

(Flattened / Threaded)

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    Ninja (profile), Sep 12th, 2013 @ 11:12am

    Disclosing every request seems extreme indeed. Specially because there may be legitimate requests in the middle. But let us think for a moment. If the police comes with a warrant to a storage company seeking information/stuff there will be a few things that will take place: 1- They will not open every single storage; 2- they'll have a warrant and it will not have been issued in secret; 3- there will be reasonable suspicion to conduct such intrusive measures. Now we add "on the internet" and suddenly those very basic things go poof, vanish. In the event the search/seizure has any problems the victim will 1- know that it occurred and 2- be able to go to the courts defend themselves. And correct me if I'm wrong but the company owner may fight the whole thing in which case the storage could be sealed to prevent evidence tampering or something. What is lacking in all this secret shit is due process. There's none. And there's no reasonable suspicion. It's just a fishing expedition with a wide, broad net so they can play with the contents as they see fit.

    What should be done now is that the big players should unite and publish the obvious abuses. Sure it's not my life on the line but I'm not responsible for hundreds of million people data either. With great power comes great responsibility. And there will be public backlash if things go ugly maybe forcing transparency at some point. The strategy is how you'll disclose the information. Snowden did it carefully and still suffered the consequences (trapped in Russia). Sure I don't know how I'd react if my life was on the line for sure but one should question what to do if the regular path doesn't seem to work? Snowden took his pick and planned to achieve it.

     

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    Anonymous Coward, Sep 12th, 2013 @ 11:25am

    You'd think the CEO of a major company...

    ...would have better lawyers. OF COURSE IT'S NOT TREASON!

    Sorry. Irritated. Very irritated.

    Mayer is exaggerating the consequences to her to make excuses for her (and others') silence. People with power and money and influence rarely go to prison. (Example: everyone in the banking industry who ripped off the entire country and crashed the economy.) In reality, the worst that would have happened is that Yahoo would have settled out-of-court for a fine.

    The issue is not that Mayer would go to prison for treason: the issue is that she didn't want Yahoo to spend the money. It's allllll about profits, all the time.

     

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      Anonymous Coward, Sep 12th, 2013 @ 12:29pm

      Re: You'd think the CEO of a major company...

      Perhaps you are correct.

      However, given the information thus far, would it be so much of a stretch to consider that the US Government would prosecute such a case as a treasonous act?

       

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        John Fenderson (profile), Sep 13th, 2013 @ 12:41pm

        Re: Re: You'd think the CEO of a major company...

        Yes, because if the government were to actually try to prosecute a case like that, it would certainly lose. Which is why they don't.

         

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      Michael, Sep 12th, 2013 @ 5:49pm

      Re: You'd think the CEO of a major company...

      You do have to wonder how many government representatives have told her that it is treason for her to believe it is.

      Think about this, Mayer is not stupid. She is clearly not easily intimidated. She has a group of very well paid attorneys that can explain the law. Why would she be using the term treason if that is not what she has been threatened with?

      When someone with her reputation is using that particular term, there is probably something to it.

       

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        John Fenderson (profile), Sep 13th, 2013 @ 12:43pm

        Re: Re: You'd think the CEO of a major company...

        The only interpretation I can think of that makes sense is that she's using "treason" in the colloquial, not legal, sense. But if that's the case, then she must actually believe it is morally equivalent to treason. And if that's the case, then that's fair warning that everyone should run away from Yahoo-owned services as quickly as possible.

         

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      art guerrilla (profile), Sep 12th, 2013 @ 6:32pm

      Re: You'd think the CEO of a major company...

      oh, its even worse than that:
      let us NOT forget that unka sugar was/is paying out HUNDREDS OF MILLIONS per year (so, does that really mean billions?) to all these Big Tech, Big Telecom companies, so i'm betting their 30 pieces of silver soothed their butt-hurt feelings over being 'ordered' (against their VERY weak will) to violate their customers privacy and constitutional rights...

      (or should we just give up the pretense, and call them 'constitutional suggestions' ?
      'wishes' ?
      'myths' ? )

      art guerrilla
      aka ann archy
      eof

       

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    Anonymous Coward, Sep 12th, 2013 @ 11:31am

    It may be in bad taste but...

    We should just tell Mayer it is just fine... we understand that you need a pair to be able to stand up against abuse by those in power.

    Treason is specific... releasing classified information alone is not enough to qualify.

     

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      Anonymous Coward, Sep 12th, 2013 @ 11:46am

      Re: It may be in bad taste but...

      Let's not get sexist here: dirtbag Zuckerberg had the same chance and took the coward's way out, too.

      And I'm sure they're not the only ones. My guess is that there are people at Google and AOL, Hotmail and Tumblr, Twitter and Pinterest, Flickr and (yes) MySpace, all over the place, who could have gotten together with their peers and all simultaneously blown the whistle...but they left it to a kid with no money, no lawyers, no power.

      There's plenty of contempt to go around.

       

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        Anonymous Coward, Sep 12th, 2013 @ 12:40pm

        Re: Re: It may be in bad taste but...

        It was mainly said tongue in cheek, but just because Suckerberg is male does not mean he as a pair either.

        But on your main point, yes... they are all to blame. People need to be honest... the rich are famous for their money. If they were poor and said the exact same things as they do now, their words would not be considered.

        Me for example... being an anonymous coward... how much does my say count for crap? If someone found out that I was say... Obama... then what I previous posted would create a literal media frenzy!

         

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      PRMan, Sep 12th, 2013 @ 12:19pm

      Re: It may be in bad taste but...

      This is like quibbling on the differences between burglary and robbery or slander and libel. She is 100% right even if she used the wrong word.

       

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        Gwiz (profile), Sep 12th, 2013 @ 12:32pm

        Re: Re: It may be in bad taste but...

        This is like quibbling on the differences between burglary and robbery or slander and libel. She is 100% right even if she used the wrong word.


        I agree.

        And the meaning of the word "treason" is changing in current parlance too. I've seen it used as meaning "going against the wishes of the government" fairly often lately.

         

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        JMT (profile), Sep 12th, 2013 @ 5:49pm

        Re: Re: It may be in bad taste but...

        Except she was specifically referring to legal consequences, so she was completely wrong. I'm pretty sure she's smart enough to know that Yahoo would not be charged with treason, but used a deliberately inflammatory term in order to make their position look worse than it actually is.

         

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          Gwiz (profile), Sep 12th, 2013 @ 6:11pm

          Re: Re: Re: It may be in bad taste but...

          I'm pretty sure she's smart enough to know that Yahoo would not be charged with treason, but used a deliberately inflammatory term in order to make their position look worse than it actually is.


          Fair enough. That's a plausible argument. You may be right.

           

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    out_of_the_blue, Sep 12th, 2013 @ 11:45am

    More posing by mega-corporations. Zuckerberg is ranting too.

    First off, NO ONE Rich ever fights The Establishment. In general, they think the system in which they're at the top is just fine, needs some tweaking at most. But they'll never be vitally interested in abstract rights of those whom they regard as "little people" or for We The People.

    2nd, these mega-corporations are based entirely on SPYING on users to sell them to advertisers! They're just NOT going to say that it's bad!

    3rd, at most these mega-corporations are arguing they should be able to tell us the number of secret requests! WELL, WHOOPEE! That'll really slow down the surveillance state!

    SHEER publicity stunt. Only good part is that they're now having to justify themselves publicly. -- And they're saying that they're craven cowards.

    Spying is the main 'business model' of the internet, especially for Google and Facebook.

     

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      identicon
      out_of_the_blue, Sep 12th, 2013 @ 11:52am

      Re: More posing by mega-corporations. Zuckerberg is ranting too.

      4th, the thrust of Zuckerberg and Mayer self-serving statements are simply to SHIFT BLAME by saying "lousy government, always on the backs of the business people". (From Homer Simpson in the "Scorpio" episode.)

       

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      out_of_the_blue, Sep 12th, 2013 @ 12:01pm

      Re: More posing by mega-corporations. Zuckerberg is ranting too.

      5th, so instead of criticizing her for being a knave, you're all chuckling and rolling eyes over her being a fool. Standard distraction technique for Ivy League professionals; they're actually schooled in evasion.

       

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        Anonymous Coward, Sep 12th, 2013 @ 1:16pm

        Re: Re: More posing by mega-corporations. Zuckerberg is ranting too.

        Speaking to yourself is typically not considered a mark of sanity.

         

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          Anonymous, Sep 12th, 2013 @ 3:50pm

          Re: Re: Re: More posing by mega-corporations. Zuckerberg is ranting too.

          It's not a mark of INsanity either. People sing to themselves, right? So what's the difference?

           

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    Anonymous Coward, Sep 12th, 2013 @ 11:50am

    Something tells me the US government had or would threaten to charge treason, regardless of the what the law says. I doubt any US CEO would even want to be accused of treason and challenge it.

     

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    Violynne (profile), Sep 12th, 2013 @ 11:50am

    I'm defending Marissa on this one.

    With all the laws now on the books, it wouldn't surprise me in the least bit if the NSA threatened (her) Yahoo with treason and find ways to make it stick.

    If Snowden's quick exit of his own country wasn't enough to justify the claim, well, you can claim "It's not treason" all you want to, but I sure as hell wouldn't take the chance either.

    Despite this, I've always said THERE IS SAFETY IN NUMBERS! EVERY company needs to come out at once and dump what they know.

    Because once they do this, the NSA will have no choice but to defend themselves, and I'm pretty sure public outcry will ensue if they tried to charge every CEO with treason while covering up their law breaking violations.

     

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      out_of_the_blue, Sep 12th, 2013 @ 11:55am

      Re: @ "Violynn": what's with the screen name? You are also "Akari Mizunashi".

      Pick one and stay with it, or I just suspect you're trying to make number of commenters here look higher, way those with profiles also post as AC.

       

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        Gwiz (profile), Sep 12th, 2013 @ 12:24pm

        Re: Re: @ "Violynn": what's with the screen name? You are also "Akari Mizunashi".

        Too funny, Blue.

        Someone edits their screen name and you go all conspiracy theroy about it.

        At least Violynn's (and/or Akari Mizunashi's) comments are all still trackable from one single profile page.

        That's more than we can say about you. You've never used an account, most likely because you don't want to be accountable for things you've said in the past. I view that as cowardice myself.

         

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        Violynne (profile), Sep 12th, 2013 @ 3:13pm

        Re: Re: @ "Violynn": what's with the screen name? You are also "Akari Mizunashi".

        ROTFL!

        Seriously? I'm getting flak from a guy who posts under how many accounts?

        If I wanted to do what you do, I'd post as an AC.

        But thanks for noticing! Makes me feel all tingly inside.

        Wait! That's my phone going off! GG

         

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    Me, Sep 12th, 2013 @ 12:23pm

    "And, for many companies it's not hard to recognize that there are strategies that are likely to be much more effective than flat out breaking the law."
    _____________________________________

    I am with you hear. This is why I mentioned yesterday that the persistent nihilism of many that there's nothing we do, that people aren't upset enough, that the NSA can crack anything, etc. isn't very productive. For one, companies operate on longer timelines than blog comments. It takes a while for the point to sink in, and then to be implemented firm wide.

    I'm a corporate lawyer. I can make changes but they will take some time to have implemented. I can't fix everything. And I don't expect you to fix everything. But if everyone does their small part, even as simple as letting their representatives and companies they patronize to take the issue seriously, things will move in the right direction.

    I think our current leaders are being traitors themselves, but realistically I don't expect any of them to hang. I can though work on (i) implementing security on my side and (ii) voting for representatives who value that security as well.

     

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    Michael Donnelly (profile), Sep 12th, 2013 @ 12:26pm

    My comment about posting the NSL still on your mind?

    Keep in mind, I wasn't calling for outright refusal, but I still believe it must be done when the time is right.

    We don't know what the Lavabit founder got in terms of the NSL. If it is something that the government can reasonably ask for (turn over these records, answer these interrogatories) with a gag order, then I agree it would be stupid and counterproductive to post it. It seems fairly likely that there may possibly be situations where that kind of gag order might be necessary for imminent threats against the country.

    But if the NSL contains orders that a normal citizen does not believe is allowed under the Constitution, then someone must fight. I'm thinking "install this device on your network between these two servers, and don't consult an attorney, and don't talk about it" kind of level. If that is being sent to people, as we suspect it might, then it must come out.

    Maybe they are never that evil. But if they are, the only way we'll find out is when someone risks life and livelihood to protect our freedom. We'll definitely never get to the bottom of those letters from the other end of the gun through Clapper and the rest of the liars.

     

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      Mike Masnick (profile), Sep 12th, 2013 @ 1:41pm

      Re: My comment about posting the NSL still on your mind?

      We don't know what the Lavabit founder got in terms of the NSL.

      I doubt it was an NSL. It's helpful not to confuse terminology, because NSLs are a very specific form of a gov't request with a gag order.

      But if the NSL contains orders that a normal citizen does not believe is allowed under the Constitution, then someone must fight. I'm thinking "install this device on your network between these two servers, and don't consult an attorney, and don't talk about it" kind of level. If that is being sent to people, as we suspect it might, then it must come out.

      Note that, even with Lavabit, that info has *not* come out.

      It's not that easy to just make those claims unless you plan to spend the rest of your life in jail.

       

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    michael, Sep 12th, 2013 @ 12:53pm

    We've seen in the past that a plurality of tech companies are happy to work together (on lobbying, for example) if it will make them a buck.

    If all tech companies (or at least the Big 4) decided to release all government requests, 100% of the time, there would be no negative consequences. The ridiculousness would be exposed and the law would be changed.

    There's no money in protecting the American people from government over-reach, though, so I won't hold my breath for this to happen.

     

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    Anonymous Coward, Sep 12th, 2013 @ 2:18pm

    The best way a company can fight these requests is to just store way less information to begin with.

     

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    Anonymous, Sep 12th, 2013 @ 2:43pm

    Fortunately, I could never be guilty of treason as defined, since I owe no allegiance to the United States. I don't owe it and they don't have it.

     

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    Anonymous Coward, Sep 12th, 2013 @ 2:48pm

    How can you say she's wrong with a straight face while Snowden is being treated as a traitor by the white house.

     

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    Anonymous Coward, Sep 12th, 2013 @ 3:17pm

    Classified documents referred to American citizens as "adversaries". Isn't that another word for enemy? Maybe it would be treason to disclose classified information to the public.

    It's a shame we're being held hostage by the secret rubber stamp court.

     

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    Anonymous Coward, Sep 12th, 2013 @ 4:05pm

    she may well be wrong and it isn't treason, but given the way this government and it's 'security agencies' behave, they would have stretched the law they wanted to use until it was so close to breaking point a fart would have have broken it, just to get the person and/or company into court and into Gitmo! because of the way the law has been mistreated just to achieve the results that are wanted (that no one else would be allowed to do!), we may as well say there are no laws! how can there be when even the judges themselves stretch the meanings etc and 'what Congress meant', just to keep certain industries happy (and to keep them paying for the luxury condos somewhere). when laws are interpreted in a particular way in one instance and in the opposite way in the next trial or by a different judge, how can there be continuity? it's basically a farce!!

     

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    Anonymous Coward, Sep 12th, 2013 @ 4:08pm

    "Treason is defined in 18 USC 2381"

    Actually, treason is defined in the Constitution itself.

     

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    m, Sep 13th, 2013 @ 5:15am

    They should have grown a set and defied the requests and paid the price to make the larger point.

    The traitors ARE the NSA. They sell out the privacy of Americans to foreign powers, thats not treasonous how???

     

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    ahow628 (profile), Sep 13th, 2013 @ 9:09am

    I may have committed some "light" treason...

    What? No AD jokes yet? I'm disappointed.

     

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    GEMont, Sep 13th, 2013 @ 1:31pm

    Not Treason... wanna bet

    "Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason..."

    The notion that disclosing information to the American People, that exposes the federal government's illegal activities, is not covered under the laws pertaining to treason might be wrong if the American Public has indeed been reclassified as the "Adversary" by the Federal Government.

    If the American Public has been legally reclassified as the "Enemy", then anyone disclosing secret documents to the American public, is indeed guilty of giving aid and comfort to the enemy of the federal government and is therefor guilty of treason under the laws of the USA.

    Remember, its all about how they "interpret" the law these days, not the letter of the law.

     

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