One Thing That's Offensive About The Government Spying Program Logic Is That It's Fine To Track "Foreigners"

Queen Maxima Netherlands princess of orangeIt’s OK to spy on the queen of the Netherlands. She’s a ‘foreigner!’

As the actual details of the government’s “PRISM” intelligence program begin to emerge, the hysteria that followed the initial reports is dying down.

Thanks to vehement, explicit denials by all of America’s big technology companies, it is becoming clear that the government does not, as the initial reports stated, have “direct access” to the central servers of Google, Facebook, Yahoo, et al–access with which the FBI and National Security Agency can spy on any of hundreds of millions of global users anytime they feel like it.

Instead, it seems clear that, as in ordinary legal processes, the government frequently requests specific user data from these companies, and, after a legal review, if the companies deem to the requests to be lawful, the companies make the data available to the government.

(Based on the companies’ statements, as well as many follow-on news reports and our conversations with technology industry sources, the hullabaloo about “direct access” appears to stem from a misunderstanding about what this actually means. What the companies are doing is delivering electronic data that the government requests–after the companies review the request to make sure the request is legal. Once this data is delivered, the government may be able to access the data on a server, and query it however the government wants. But this does not mean the government has unfettered “direct access” to the companies’ central servers and hundreds of millions of users, as the initial PRISM reports implied).

Given the volume of the information that the government is collecting, it’s certainly reasonable to consider whether American laws are appropriate and have the necessary checks and balances in place–or whether we are focusing too much on “security” and not enough on “privacy.” And, as ever, it’s also worth making sure that the government is following the laws.

Those are important questions, but they have nothing to do with the technology companies. So, as the reality of the process by which the tech companies make legally requested information available to the government becomes clear, the debate should shift to the laws and government behaviour.

From a high-level perspective, in other words, the PRISM program seems to operate pretty much the way one would expect it to operate. The government collects as much electronic communications data as it can–because electronic communications are the way almost everyone communicates these days. And when the government sees behaviour that arouses its suspicion, it asks the FISA court for permission to request specific user data from companies under the Foreign Intelligence Surveillance Act. And then government reviews this data to see whether further investigation is warranted.

One thing that is interesting–and, to many people, offensive–about the way the U.S. government is defending the PRISM program, however, is by reassuring people that the program can only be used to spy on “foreigners.”

The U.S. government appears to assume that, once people realise that PRISM is focused on “foreigners,” they won’t care what the government does.

And maybe, unfortunately, the government is right about that–at least in America.

But most people in the world–and most of the billions of users of Facebook, Google, Yahoo, and other major Internet services–won’t likely be so sanguine. That’s because these people do not happen to be Americans. They happen to be “foreigners.” And that means that they are included in the group of ~7 billion non-Americans that the Foreign Intelligence Surveillance Act apparently gives the U.S. government considerable freedom to spy on.

If all ~7 billion “foreigners” in the world were likely to be potential terrorists, and the 300 million Americans were not potential terrorists, this logic might make sense.

But as recent events in Boston have shown, Americans can also be potential terrorists. And most of the ~7 billion “foreigners” targeted by PRISM, meanwhile, are law-abiding folks who would never dream of blowing up planes or killing innocent people.

These “foreigners,” moreover, also constitute the vast majority of the users and customers of Google, Facebook, Yahoo, and other American tech companies.

So the idea that these companies would voluntarily and happily allow the U.S. government to spy willy nilly on these “foreigners” is both outrageous and offensive.

What this renewed focus on U.S. government intelligence programs has revealed, in other words, is not just the concern that these programs may now be going too far. It is that some Americans still don’t appear to appreciate that we live in a highly globalized world–a world in which assurances that massive American spying programs are only focused on “foreigners” won’t come as much comfort to the billions of customers who have helped make some of our companies the most powerful and richest in the world.

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