If U.S. telecom companies have the capacity to challenge government requests for their customer data, why haven't they done so?
More than two days after a declassified opinion from the secretive court that overseas the National Security Agency's surveillance programs said that the absence of challenges by these companies—including Verizon, T-Mobile, AT&T, and others—is among the reasons it continues to approve authorization for the bulk collection of this kind of data, none of these corporate entities have commented publicly about how they perceive the legality of such programs.
“To date, no holder of records who has received an Order to produce bulk telephony metadata has challenged the legality of such an Order,” wrote FISA court Judge Clair V. Eagan in her "declassified" ruling, written on August 29 of this year and released to the public in redacted form on Tuesday.
However, trying to obtain clarification on exactly how these giant firms interpret the requests from the NSA, the Guardian's Ed Pilkington hit a dead end.
As the newspaper reports, the companies were asked how they "could justify to their own customers the decision not to challenge the court orders, in stark contrast to some internet companies such as Yahoo, which have contested the legality of NSA collection of their customers' data."
In response to that and other questions, none of the companies offered a reply.
And as Pilkington concludes:
The companies' decision not to comment on any aspect of the NSA dragnet puts them in a increasingly peculiar position. By withholding their internal views from the public, they are setting themselves apart from equivalent internet firms that are taking a more bullish stance, and are shrouding themselves in more secrecy than even the Fisa court, one of the most tight-lipped institutions in the country.
But, according to Salon's Natasha Lennard, it would be a mistake to draw a picture that paints online firms like Yahoo, Google, or Facebook as significantly more noble than their telecom industry counterparts. She writes:
... the position of the telecoms firms is only a difference in patina. Structurally, the companies that handed over telephonic metadata under Fisa orders and those that handed over email metadata played the same role in providing the government with a sprawling repository of information on U.S. citizens’ communications. One might argue that it is, at least, preferable now that online leviathans are pushing for greater transparency while phone companies remain troublingly mum. But lets not then pretend that the Internet firms are thus the good guys in this story, protecting users against government spycraft. It is the very business of companies like Google and Facebook to track user activity (this is how targeted advertising works); they constitute the surveillance state as much as any NSA program. Silence over and acquiescence to secret government orders from the likes of Verizon should not mean absolution for its noisier Silicon Valley counterparts.