Pruning Shears

No Associated Press content was harmed in the writing of this post

Prior to 9/11 the Bush administration had the National Security Agency (NSA) approach telecommunication giants and essentially coerce them into allowing the NSA to engage in warrantless surveillance. The one company - Qwest - that resisted was apparently retaliated against for its troubles. The rest, though, faced legal exposure - and were desperate to escape it. Further, it was urgent that the lawsuits be derailed before discovery could begin; if the public got to see the details of the indiscriminate spying its phone companies had engaged in against them it would have been a PR nightmare. So the president insisted Congress pass a law conferring retroactive immunity on them.

Interestingly, while researching for this post I came across multiple references to a New York Times article titled “Bush Presses Congress on New Eavesdropping Law” by David Stout. These contemporaneous accounts quote the article as follows:

President Bush prodded Congress on the issue of eavesdropping today, warning that he will not sign a new law unless it confers immunity on the telecommunications utilities that helped the National Security Agency eavesdrop without warrants. The issue of whether the telecommunications companies should have immunity has emerged as the most contentious point between Democrats and Republicans on Capitol Hill. President Bush is pushing hard for the companies to be immunized from civil suits for past actions.

The link now points to an article titled “House Panels Reject Appeal on Eavesdropping” by Stephen Labaton, and the text above is nowhere to be found. Please drop a note in the comments if you can shed some light on this curiosity! (Incidentally, this also might be an outstanding justification for bloggers generously copying and pasting from big outlets. If links can apparently get redirected without notice, a site like CovenantNews.com might be our only resource for even fragmentary originally-published material.)

Senator Barack Obama, desperate for some traction against Hillary Clinton in the fight for the Democratic nomination for president announced (via) he would support a filibuster if it contained retroactive immunity, but in the end he supported it. The phone companies were off the hook (har) and no one had to find out anything.

Why dredge up this ancient history? Because it sent the message to the business community that if the government comes calling it is best to go along. There is no downside to cooperating, apart perhaps from some anxiety while the pretty theater in the capitol plays out. There is a definite downside to pushing back, though.

This scenario appears to be repeating, this time with Internet companies. Twitter just received a subpoena for user data along with a gag order preventing it from telling the targets. To its enormous credit, it fought back, challenging and quashing the gag order. WikiLeaks - the target of the investigation - raised the entirely reasonable question of whether, say, Facebook and Google have received similar orders. What assurance can anyone have that their data is being protected from US government surveillance?

Other countries are already wary of the widespread collection of data by some American companies, as well as their cavalier treatment of it. Google in particular is having a devil of a time convincing foreign governments of the purity of its intentions. Its Street View program is drawing lots of unwanted attention - particularly in societies with unhappy histories of spying - and its nonchalant collecting of unsecured WiFi data is drawing fire too. Its IP address tracking program, innocuously titled Google Analytics, is also starting to receive scrutiny.

Companies like Google, Facebook and Twitter dominate the relatively new spaces of search, aggregation and social media. For as much as we like to think of Planet Internet as existing in the ether, everything gets passed along and kept (even if only briefly in cache) on a device. That device exists in a physical space, and the country where it sits will be uniquely well positioned to get its contents.

Obviously that is true everywhere, but it is not hard to imagine a scenario where the US turns into an IT pariah. Would you do business with, or even allow into your country, a company that might quietly work with a foreign government to turn over data on your fellow citizens? Or one that might not even be forthright about whether that was happening? Or retroactively cleared of lawbreaking?

Given America’s recent past there might be developing a powerful incentive for countries to develop their own alternatives to these companies, with the server farms located on their own soil thank you very much - even if those alternatives are much-diminished versions of the originals. Twitter might be fighting for more than just the integrity of its data. It might also be fighting for the long term relevance of its industry.