emptywheel_02

Yahoo to Clapper: Global, Global, Beyond our Borders, Global

I joked when Yahoo first released its letter to James Clapper the other day, asking that he release details about the 2015 scan first revealed by Reuters. It has the tone of a young woman who is justifiably upset because, after sleeping with her, some jerk is pretending he doesn’t even know her.

But as it happens, I’m in Europe, trying to learn more about Privacy Shield and related issues. So I thought I would call attention to the emphasis Yahoo lawyer Ronald Bell (who was the guy who decided not to challenge this) puts on the international impact of Clapper’s decision, thus far, to remain silent.

As you know, Yahoo consistently campaigns for government transparency about national security requests and for the right to share the number and nature of the requests we receive from all governments. We apply a principled approach to handling government requests for user data, including in the national security context, articulated in our publicly-available Global Principles for Responding to Government Requests and regular transparency reports. Our company not only embraces its privacy and human rights responsibilities, we do so enthusiastically, passionately, and with a deep sense of global and moral responsibility. But transparency is not merely a Yahoo issue: Transparency underpins the ability of any company in the information and communications technology sector to earn and preserve the trust of its customers. Erosion of that trust online implicates the safety and security of people around the world and diminishes confidence and trust in U.S. businesses at home and beyond our borders.

Recent new stories have provoked broad speculation about Yahoo’s approach and about the activities and representations of the U.S. government, including those made by the Government in connection with negotiating Privacy Shield with the European Union. That speculation results in part from lack of transparency and because U.S. law significantly constrain–and severely punish–companies’ ability to speak for themselves about national security related orders even in ways that do not compromise U.S. government investigations.

We trust that the U.S. government recognizes the importance of clarifying the record in this case. On behalf of Yahoo and our global community of users, I respectfully request that the Office of the Director of National Intelligence expeditiously clarify this matter. [bold emphasis mine]

Folks here definitely followed the Yahoo story. Their understanding of what happened leads them to believe the scan violates European prohibitions on mass surveillance. Importantly, they’re not aware that this was done with an “individual” FISA order rather than under Section 702. As I’ve written, “individual” orders have been used for bulk scans since 2007, but in this case, an “individual” order would also mean that a judge had reviewed the scan and found it proportional, which would make a big difference here (at least to authorities; a number of other people are raring to challenge such judgements on whether it is an adequate court or not).

So yeah, by disclosing details of this scan, Yahoo may be in much better position vis a vis European authorities, if not consumers.

But there’s another reason why Clapper’s office — or rather ODNI General Counsel Bob Litt — may be so quiet.

Litt is the one who made many of the representations about US spying to authorities here. Someone — Litt, if he’s still around for a hearing that may take place under President Hillary — may also need to go testify under oath in an Irish court in conjunction with a lawsuit there. Whoever testifies will be asked about the kinds of surveillance implicating European users the government makes US companies do.

In other words, Bob Litt is the one who made certain representations to the European authorities. And now some of those same people are asking questions about how this scan complies with the terms Litt laid out.

Which makes his silence all the more instructive.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

6 replies
    • m says:

      quote”When I hear the name “Clapper” I can’t help but think of the Johnny Carson – Jack Webb skit about the copper clappers. “

      Bwahahahahaahahahahahahahahaha…  god that was good. Thanks bloopie2.

    • martin says:

       

      In case any of you are old enough to remember and/or love those guys, this may give you your yuks for the day.

      Hahahahahaha!   That made my day.  Btw, I’m so old I remember the time when programs like this were mocking the 2016 election in the early 50’s.  The dude in the frog suit is Trump.

      https://www.youtube.com/watch?v=AFpzTaICKQU

       

       

       

       

       

  1. rugger9 says:

    Very loosely related, but it appears Eichenwald is standing by his Sputnik story and named someone (Moran) as a serial fabricator / useful idiot. Since EW made a point of being skeptical about Eichenwald’s claims in Newsweek last week, perhaps the team here can tap their contacts to either confirm or debunk the stuff this week for the benefit of the board citizens since my contact list is not up to the task. It does appear that this is a pattern of misinformation run by Putin’s allies if what is said is true.

    Link: http://www.rawstory.com/2016/10/newsweeks-kurt-eichenwald-i-got-slimed-by-russian-propagandist-site-sputnik/

  2. GKJames says:

    Assuming, of course, that they in fact believed Litt the first time around. It’s remarkable how, after so many instances of official Washington mendacity–much of it helpfully laid out on this site–no one gets the giggles whenever these people start talking.

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