Will The Patriot Act Cost Google Business?

from the well,-thanks-to-fear-mongering dept

The Globe and Mail is running a somewhat sensationalistic piece about a Canadian university, Lakehead University, that decided to start using Google's email system to replace its own buggy and frequently crashed offering. The problem? Fears concerning US data privacy laws, such as the Patriot Act, mean that professors are told not to send confidential info, including grades, via email. This has upset a number of professors who are protesting the use of Google's products. There are a few different points that are worth sifting out of this.

First is the question of whether US laws like the Patriot Act, are potentially harming US businesses, as foreign organizations choose not to do business with them due to the implications of those laws. Chances are likely that this is happening quite frequently, even if those fears are totally overblown with respect to reality. Of course, it's not clear why a company like Google doesn't just set up local servers in certain countries, like Canada, to deal with local companies -- and then consider those out of the reach of US laws and authorities. It would seem like a smart business move.

The second question, though, is whether or not the government is really sniffing through everyone's email. The article seems to imply that, thanks to the Patriot Act, the feds have open access to Google's servers. While you can understand the paranoia, that's a bit overstated. The article says: "Using their new powers under the Patriot Act, U.S. intelligence officials can scan documents, pick out certain words and create profiles of the authors." That's not accurate. Or, rather, it's leaving out huge parts of how this is done. The Patriot Act didn't just hand all of Google's info over to the feds so they can create profiles on anyone. I'm not one to defend the Patriot Act, which I think is a terrible piece of legislation, but it does no one any good to make false statements about what it has allowed.

The third question is whether or not Google's own ad displays next to email is troubling to a university -- which is a bogeyman I thought had been killed back around 2004. Given the cost (free) to the university, you'd think they'd understand the tradeoff. The "payment" is the ads. If it's such a problem, then the university is free to go spend however many millions of dollars on building its own system. Or, perhaps Google can offer up an ad-free version for paranoid universities.

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Secrecy Plus Immunity Eliminates Accountability

from the trust-us,-we're-from-the-government dept

Former Attorney General John Ashcroft takes to the pages of The New York Times to defend legal immunity for telecom companies that cooperate with government surveillance programs. Ashcroft cites the "inherent unfairness of requiring companies to second-guess executive-branch legal judgments" when they have received "explicit assurances from the highest levels of the government that the activities in question were authorized by the president and determined to be lawful."

Yet the Protect America Act passed this summer, which the White House has been pushing to make permanent, apparently expects them to do precisely that. One of the very few provisions for judicial oversight of the secretive surveillance authorized by that act is a clause allowing companies to challenge requests for information before the Foreign Intelligence Surveillance Court. As Qwest has already discovered, firms deemed uncooperative by the government may face serious consequences, such as the loss of lucrative contracts. If the countervailing threat of private lawsuits is eliminated—and in particular if legislators create the expectation that cooperation with extralegal demands can always be retroactively blessed—firms have no motive beyond sheer public-spiritedness to raise objections to specific requests, however unreasonable those requests might seem.

Under the current law, the court's only other point of contact with the wiretap program comes at the most general and abstract level. Traditionally, though, courts have entertained both "facial" and "as applied" challenges to statues—objections in practice as well as in principle. Since the point of secret surveillance is that its subjects may never learn it occurred, removing the telecoms' incentive to raise questions effectively dispenses with that second check. As legal scholar Jack Balkin has argued, secrecy plus immunity eliminates accountability.

Julian Sanchez is an expert at the Insight Community. To get insight and analysis from Julian Sanchez and other experts on challenges your company faces, click here.

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Anonymous ISP Owner Speaks Out, As Feds Appeal Ruling Against Patriot Act

from the freedom-of-speech,-eh? dept

It will probably come as little surprise, but the Justice Depatment has now made it official that it plans to appeal the ruling that found that the parts of the Patriot Act that expanded the power of so-called "National Security Letters" was unconstitutional. The issue here is that the Justice Department has been using these letters to get private info from telcos, ISPs and others without any oversight. Beyond not even needing to get a judge's approval, the FBI has apparently been so disorganized that it tracks the use of these NSLs on index cards and has had trouble keeping track of how often they're used. Not surprisingly, a court found this all problematic, but the Justice Department continues to insist that it's just fine and dandy. In response, the anonymous small ISP owner who filed the original lawsuit has spoken out against the policy, noting that the gag order imposed on recipients of national security letters makes it "impossible... to discuss their specific concerns with the public, the press and Congress." He also stated: "This seems to be counterintuitive to everything I assumed about this country's commitment to free speech and the value of political discourse." Indeed. It's yet to be explained why there isn't any oversight here at all. Given the opportunity for abuse when there's no oversight, can someone give a good reason why these things should be allowed? They can be just as effective with a judge approving them. However, with no oversight and the corresponding gag order, it seems like an open playing field for abuse of the system. Given that the FBI can't even track how they're using these tools, it seems even more dangerous.

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