Can Silicon Valley Stand Up to Washington?

Flickr user Kalexanderson

A response to the NSA surveillance program has been arduous.

Watching Silicon Valley respond to the National Security Agency surveillance uproar has been a bit like watching Iron Man gear up for battle—countless screws whirring themselves into position; armored scales sliding closed; weapons charging; the menacing faceplate slamming solidly shut.

One after another, Apple, Facebook, Google, Microsoft and Yahoo have all shifted from playing defense—disavowing any knowledge of PRISM—to playing offense. While none are legally able to talk about PRISM’s specifics, the tech companies are not afraid to take aim at the culture of secrecy that created it. Their call for more government transparency, however, is at odds with the nation’s intelligence apparatus, a bureaucracy so big nobody knows how much it costs or how many people are in its employ.

Against that, what chance does Silicon Valley have?

Google won an early victory in March when it negotiated a deal with the government to print the number ofNational Security Letters it receives from law enforcement each year. The NSL figures that Google now lists in its transparency report are only a range, and the contents of the actual data requests are still secret. But if only a little, the move cracked some of the mystery.

Asking nicely seemed to work once. So now Google is trying again, filing a motion to the Foreign Intelligence Surveillance Court begging permission to disclose how many warrants for user data Google receives under the Foreign Intelligence Surveillance Act. But here’s where the Silicon Valley unity begins to break down. Not all of its peers agree with this strategy.

“This is likely to just slow the process down even more,” said one lawyer for a tech company involved in the process. “Anyone familiar with the state of play at this point knows that inserting a court motion into this process just means transparency … will take longer and be less likely in the end."

One reason Google’s latest bid may fail is that court orders from the FISC are classified, meaning that even if the FISC wanted to grant the company’s request, the Obama administration would have to declassify the information first. Some in Congress want to force the White House to do just that. But the success of that effort is far from guaranteed, and besides, given Obama’s reticence on the subject so far, it’d be foolish to expect him to sign it.

In the company’s defense, all it is asking for is the right to publish a number—not the actual court opinions—and as the Justice Department already tells the public how many FISA warrants it sends to everyone every year, breaking it down by company doesn’t seem like much more of an ask.

Unlike other high-profile battles over tech policy such as immigration or SOPA/PIPA, where lobbying dollars can sway votes, Silicon Valley’s financial reserves are not a reliable asset here. In the realm of the courts, the only currency that counts is a good argument. Fortunately for the tech companies, on their side is an organization whose specialty is suing the government.

Arguing that the NSA’s surveillance activity constitutes unreasonable search and seizure and a suppression of free-speech rights, the American Civil Liberties Union sued the agency last week. The formal complaint charges that Section 215 of the USA Patriot Act directly enabled the government’s violation of the First and Fourth Amendments.

The case’s future is uncertain. Laurence Tribe, the Harvard constitutional scholar and President Obama’s former mentor, told me that any Fourth Amendment challenge to the NSA would be “rendered difficult” by what’s known as the third-party doctrine, which says basic transactional data like phone numbers and credit-card purchases don’t enjoy the same privacy protections as other forms of information.

That could be problematic for Patrick Toomey, an ACLU attorney. Toomey said in a phone interview that the Fourth Amendment claim was “really one of the most significant claims here.”

But if it gets taken up, this case could also provide the momentum for a reinterpretation of the third-party doctrine in general, Tribe said. Critics of the doctrine believe that advances in communications technology have caused more and more transactional data to fall within its scope, widening the possibility of privacy violation.

It wasn’t long ago that tech companies had just one rule governing everything they did: Move fast and break things. (A second rule that’s since emerged speaks to the same principle: F**k it. Ship it.) Then they discovered that their mantra, while effective at producing ideas at a tremendous rate, had the side effect of disrupting other people’s rule sets—not necessarily a bad thing, but one that called for careful politics. As a result, the tech industry now spends upwards of $130 million a year on congressional lobbying, more than three times what it did in 1998.

But it’s what the tech world is doing in the judicial space that’s more interesting. Google’s petition, and the ACLU’s lawsuit, shed light on another facet of the increasingly complex dance between Silicon Valley and official Washington. Not since the Microsoft antitrust proceedings has so much nerd attention been focused on the courts (secret or otherwise).

(Image via Flickr user Kalexanderson)