The Pressure on Big Tech
Terry H. Schwadron
June 15, 2021
Among the many troubling issues arising from disclosure of the politically driven leak investigations in Washington is the rising number of demands for personal information from those big technology companies who track way too much about our lives.
The specific complaints about subpoenas and gag orders involving two Democratic congressmen and a minor family member arose from a 2018 Justice Department order for information to Apple, covering information on 109 identifiers made up of 73 phone numbers and 36 email addresses, but that it did not release content such as emails and pictures to prosecutors. Apple said that it had no way to tell what the nature of the investigation was, that it affected Congress members and family, and it released only basic “account subscriber information” such as names, addresses, email addresses and telephone numbers, as well as connection logs and IP addresses.
The idea, of course, is that such information can be used to establish whether someone had contact with a member of the media or whether the person’s work or home accounts were tied to anonymous accounts that were used to disseminate classified information
But here’s the thing: It was one of 250 such broad requests to Apple alone in just that week.
As it turns out, law enforcement requests for data from American tech companies have more than doubled in recent years, with Facebook saying it received nearly 123,000 data requests from the U.S. government last year, up from 37,000 in 2015. Apple says its federal subpoenas for information doubled in the first half of 2020 over 2015, and the number of accounts in each request are increasing as well.
Apple told The New York Times that it was a paralegal who reviewed the government subpoenas. On average, 80 to 85 percent get fulfilled. But Apple — and the others — have challenged those that included many accounts because they were too broad.
A former senior lawyer for Apple who spoke to The Times said whether a request was challenged often depended on whether a paralegal handling the subpoena elevated it to more senior lawyers. Apple now says it is tightening its compliance, challenging anything beyond groups of 25 accounts at a time.
When Google got a Justice Department subpoena for similar data involving New York Times reporters, that company resisted — because The New York Times is a client of Google services. Indeed, that resistance to government intrusion had been part of business negotiations between The Times, where I represented newsroom interests, and multiple technology companies.
Having a contract with the subpoenaed party gave Google a more specific basis on which to challenge the gag order.
With the numbers of government and law enforcement requests for information increasing, and the standing of tech companies in Washington generally falling, we can see an interesting set of uncomfortable problems developing.
Partisanship aside, Congress is not reacting well to knowing that Big Tech is giving information about members to the Justice Department, particularly as it was run under Donald Trump, the White House under several presidents has wanted to stop leaks, and all this is playing out against Big Tech’s promises of privacy while the same government looks askance at its industry for anti-trust practices, introducing new, bipartisan legislation even last week to challenge overly broad ownership and influence in technology areas.
We’ve seen Apple refuse to open a seized terrorist iPhone after fatal attacks in San Bernardino, Calif., but now complying most of the time with offering up records of phone calls.
There is an obvious conflict between Big Tech’s promises of Customer Privacy as sacrosanct and the would-be needs of law enforcement. When the White House leans on Justice to punish political enemies t twisting the powers of law enforcement, we have a heightened level of public betrayal in the air.
There is enough conflict here to say we are developing new meanings for “anti-trust” beyond monopolistic business practices.
Tech Companies Comply
Whatever the public pronouncements, the tech companies regularly comply with Justice requests because they are legally required to do so, fighting a small percentage of the time when the subpoenas are too vague.
As The Times noted, “That underlines an awkward truth: As their products become more central to people’s lives, the world’s largest tech companies have become surveillance intermediaries and crucial partners to authorities, with the power to arbitrate which requests to honor and which to reject.”
What is not at all clear is how hard tech companies, which basically have eschewed responsibility for content of their users, are allowed to push back against Justice or localized law enforcement.
The current case causing the brouhaha and launching a probe by the Justice Department’s independent inspector general shows that these requests in the hands of Donald Trump went too far. It’s a long stretch from general law enforcement privacy concerns to pursuing political enemies like Rep. Adam Schiff and Rep. Eric Swalwell, both vocal California Democrats opposing Trump — and even involving White House lawyer Don McGahn who testified to Special Counsel Robert S. Mueller III that Trump had tried to fire Mueller.
Lost in all this is the irony that the issue involving any leaks in the first place were about Trump’s moves to stop coverage of the firings of former FBI head James B. Comey Jr. and then Mueller, both Justice and law enforcement figures. Trump, of course, was a suspect, and was described as obstructing justice in the Mueller Report — even though he could not be prosecuted at the time.
In case you’re keeping score, that’s the criminal, protected from any charges, going after law enforcement, which then went after people who raised questions about it all.
Making it worse was Justice getting gag orders that kept the top executive at the different institutions subpoenaed from discussing it with those actually under investigation — a violation of ethics and fairness, if not actual written procedures or laws. Both Sessions and Barr blandly say they knew nothing about any of these subpoenas and gag orders, as if that is believable. The alternative is that they were incompetent at running the department.
The Justice Department’s own recommendations released in 2017 say the department should go to the corporation or employer rather than to a technology provider, unless doing so was impractical or would compromise the investigation.
Any suggestion that an inspector general’s report is going to stop a White House bent on pursuing political enemies is doubtful, of course. Nor will these incidents stop leaking.
Meanwhile, Garland said that the Justice Department would beef up its policies for obtaining lawmakers’ records and vowed “strict accountability” for officials who let politics affect their work. And, it was announced that a former Trump official in the Justice Department left Justice before he had been scheduled to do so, though there was no reason offered.
The problem here is a White House that refused to recognize the limits of democracy. It should be held to account.