Government Intrusion Into The Cloud
The latest revelations about our government’s surveillance of “telephony metadata” is a scandal for some but a yawner for most Americans. 56% said they didn’t mind as long as the information was being used to catch terrorists. The thing is that while Contractor Snowden named names: PRISM, Microsoft, Verizon, Google, he didn’t tell us anything that hasn’t been in the press for years – even decades.
But, what if you run a cloud service, communications network or even an email server, and receive a government demand for customer data? Can you tell your customers? Should you? What is your risk is as a provider?
There are several avenues for the government to access your customers’ electronic records. Ironically, two of them are “privacy” laws designed to put some restraints around law enforcement and the intelligence community: the Foreign Intelligence Surveillance Act (“FISA”) and the Electronic Communications Privacy Act (“ECPA”). But it was the Patriot Act that really boosted electronic surveillance by the FBI through the National Security Letter (“NSL”) statutes. None of these laws are new. The Patriot Act is now 12 years old. FISA turned 35 this year, and the ECPA is 27 years old.
Contractor Snowden’s leaks appear to be related to FISC orders, the secret court authorized by FISA that may issue orders for the surveillance of non-US citizens without their knowledge.
The ECPA came about to give early email users comfort that their mail providers wouldn’t just turn over their email to anyone who might ask. In defense of the ECPA, it requires law enforcement to get subpoenas, search warrants or court orders through normal channels. It also requires the provider to get customer consent to disclose the contents of their communications, but not for disclosure of customer account information.
NSLs have a history of abuse by the FBI and have suffered repeated constitutional challenges with the latest adverse court ruling just in March of this year. A US District Court judge declared the entire statute unconstitutional and told the FBI to stop issuing them. However, in a remarkable reversal a few weeks ago, the same judge ordered Google to turn over most of the requested user information anyway, pending a ruling from the 9th Circuit Court. Stay tuned on the status of NSLs.
So what’s eating Snowden? Has surveillance activity under these laws spiked? Due to the secrecy requirements, we, the general public, get only an annual report on numbers of FISC orders and NSL authorizations. On Monday, The Daily Show reported to outraged laughter that FISC had issued 1788 orders last year. But that’s not the half of it. The FBI issued 15,229 NSLs pertaining to 6,223 different US persons – not including requests for subscriber information only. While this may be shocking, the reality is that the numbers of FISC orders have been reasonably consistent since 9/11, and the number of reported NSLs has dropped 50-70% during the Obama administration.
In the end, what does this mean to a cloud company that gets a law enforcement demand to turn over customer information?
- A subpoena, search warrant or court order issued under the ECPA may or may not require notifying the customer and getting the customer’s consent prior to disclosure. Make sure it’s validly issued and get consent if necessary before complying. If you follow the law, the ECPA provides you immunity from actions claiming improper disclosure.
- Check your customer contracts including any confidentiality agreements. It’s common to agree to notify the customer, if allowed by law, prior to disclosing any customer information so that the customer may seek to limit or deny the request. The ECPA doesn’t require secrecy. FISA and NSL authorizations typically do.
- A FISC order is secret and literally would take an act of Congress to change. However, in 2008 FISA was amended to give immunity to communications providers who follow the law. Now do you understand PRISM?
- It’s unclear if NSLs are still being issued during the appeal of the Google case, but any NSL bears careful scrutiny before complying. In addition, there is no immunity for communications providers under the NSL statutes.
By Cindy Wolf
(Image Source: Shutterstock)
(*Note - This publication is provided for informational purposes only. It does not constitute legal advice. There is no implicit guarantee that this information is correct, complete, or up to date. This publication is not intended to and does not create an attorney-client relationship between you and the author...)