How Tech Transparency is Good for Writers
At the end of March, Microsoft released its dryly named 2012 Law Enforcement Requests Report to the public, signaling its entrée into the welcome new world of transparency reporting by tech companies. The report contains important information about the 75,378 requests the company received in 2012 from government agencies such as the Department of Justice and the FBI, and, especially key for threatened writers, it offers data about Skype, which Microsoft acquired for $8.5 billion in 2011.
Microsoft and other tech companies form part of the Global Network Initiative, a multistakeholder body that includes NGOs, government, and academics. These conversations between companies and human rights activists helped give rise to the GNI Principles, which now form the backbone of the initiative and which offer a set of clear, practical guidelines for companies and governments in the digital age. Rights groups have criticized the GNI as a talk shop but Microsoft’s involvement in the program may have strengthened its reporting—indeed, Microsoft’s report mentions the GNI in the first line. But it’s also clear that advocacy by rights groups made a difference as well. The Electronic Frontier Foundation’s Jillian York, writing in Al Jazeera, credited a petition launched by Lebanese activist and developer Nadim Kobeissi for nudging Microsoft in the right direction.
Google set the standard, in many senses, for transparency reporting with its first report in 2009, but Microsoft’s report includes data that actually explains how it makes certain decisions. For example, the FAQ in the report states: “We require a valid subpoena or equivalent document before we will consider releasing non-content data; and we require a court order or warrant before we will consider producing content.” This efficiently worded sentence clearly states that the company will release information that does not reveal the content of the message with a subpoena, a lower standard than a warrant. To actually hand over the content of a communication to a government authority, Microsoft requires a valid warrant.
In its report, Microsoft also joined Google by disclosing a general range of the number of National Security Letters (NSLs) that it received from 2009 to 2012. NSLs are used by the FBI to request information for counter terrorism or terrorism work. Writing at the ACLU, Alex Abdo explains, “This practice has been shrouded in secrecy, though, because the FBI gags recipients of NSLs—preventing companies from telling their customers that the government has asked for records about them.” The good news is that using the gag order may soon be a thing of the past. A federal district court judge in northern California ruled in March that these gag orders had a chilling effect on free speech, which may have led Google to immediately challenge an NSL request in court this week.
Understanding how often the government requests information from companies and how often the companies respond is good for writers and free expression. By knowing how often writers are surveiled, and in what form, PEN can work to improve their safety and press for better policies and legislation. Turkey (11,434 requests), the United States (11,073), France (8,603), and Germany (8,419) top the list of government requests from Microsoft. It is also encouraging to read that Microsoft does not always comply with the requests, and sometimes even challenges them.
Skype and Voice over Internet Protocol (VoIP) calling have become mainstays for activists around the world because of its low price point (typically the cost of bandwidth), and because Skype calls are encrypted. Skype-to-Skype calls make it difficult—but not impossible, no encryption is 100 percent infallible!—for people to eavesdrop on your communications. The report explains that Skype calls are not secure when made through mobile phone networks or from Skype to phone lines; privacy can be broken by either end of the communication. Skype’s transparency reporting differs from Microsoft’s at the moment because it was only recently acquired, but the report states that Skype will soon harmonize the two policies.
As a nonprofit, PEN utilizes Skype to maintain contact with writers from PEN Centers around the world. Our Rapid Action Network requires detailed fact-gathering about threatened writers, and the most efficient and cost-effective way of seeking this information is often through email or VoIP calling. Our international work with human rights activists led us to join the ACLU and other groups in the Supreme Court case Amnesty v. Clapper in order to challenge a law that allows the National Security Agency to spy on our communications with overseas writers. Unfortunately, we lost the case in a Kafkaesque example of circular reasoning, but there is still hope.
Privacy and transparency will only become more important to human rights organizations as our communications increasingly rely on digital technologies. In releasing its report, Microsoft has joined Google, Twitter, and a host other companies (although notably not Facebook) in supporting free expression in the face of government action. It’s a good thing these companies are keeping the government from abusing our information, but the question is, how do we keep the companies themselves from misusing our information? Watch this space.
UPDATE: The post previously stated that there was “strong evidence” that Microsoft’s involvement in the GNI improved its transparency report. While Microsoft is an active participant in the GNI, and cites the initiative in its report, the direct influence is unclear.
photo by Lili Eta Mariji on a Creative Commons license