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.

Filed Under: fisc, marissa mayer, nsa, nsa surveillance, prism, tech industry, treason
Companies: yahoo

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  1. identicon
    Me, 12 Sep 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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