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Published: Wednesday, 7/17/2013

Microsoft, Google input sought in probe of NSA spy programs

BLOOMBERG

WASHINGTON — A U.S. board reviewing whether surveillance programs violate civil liberties wants to hear from companies including Google and Microsoft on what kind of data and access to servers they’ve given the government.

The Privacy and Civil Liberties Oversight Board, appointed by President Obama, is reviewing the scope of National Security Agency spy programs and will recommend to Congress whether new controls are needed to curb the government’s surveillance authority.

Meetings with Internet and telecommunications companies will “shed light” on how they respond to orders to turn over data and whether the NSA has overreached, David Medine, the board’s chairman, said in a phone interview Tuesday.

“It’s valuable to hear company perspectives on how the programs operate,” Medine said. “We want to hear both sides of it. We want to hear the government side but we also want to hear the private-sector side.”

Medine said he decided to request meetings with companies and trade associations that weren’t asked to participate in the board’s first public meeting after Bloomberg inquired about the panel’s work.

Obama, facing criticism from privacy advocates and some lawmakers that NSA programs violate citizen rights, has described the board as a counterweight to spy programs.

Created by federal law to ensure U.S. spy programs don’t infringe citizen privacy, the board was dormant for six years and came to life when Medine was sworn in May 29, eight days before publication of the first news stories, based on leaked documents from Edward Snowden, about secret NSA progras.

The panel took testimony July 9 from national security watchdogs, former government officials and a former judge on the secret court that sanctioned the spying, and heard recommendations to restrain the NSA.

No businesses or trade groups were asked to appear. Several Internet companies have said they comply with a federal court’s orders to provide the NSA access to e-mails, videos and photos under one of the classified programs exposed by Snowden.

The former government contractor also revealed a secret court order compelling Verizon Communications to give NSA calling records of millions of Americans. It isn’t known whether other phone companies were subject to similar orders.

The privacy board on July met with executives from Apple, based in Cupertino, Calif., for about an hour, Medine said. Apple, which requested the meeting, was one of the companies cited in reports by The Guardian and The Washington Post newspapers as participating in the NSA program, known as Prism.

“We requested a meeting with the Privacy and Civil Liberties Oversight Board to strongly advocate for greater transparency about the national security-related requests we receive from the government,” Apple spokesman Steve Dowling said in an email. “Apple has always placed a priority on protecting our customers’ personal data.”

The meeting helped the board get “a better sense of how the program operates,” Medine said. He declined to further comment or say which other companies he has contacted.

Apple, Google, based in Mountain View, Calif., and Microsoft, based in Redmond, Wash., have asked the Justice Department for permission to clarify what they do and don’t disclose to the NSA.

Interviewing companies will help the panel understand the programs, how many companies are involved and what access the government has to networks and data, privacy advocates said.

“It’s not clear how the oversight board can determine whether the government complied with the relevant legal authorities if they do not consult with the companies that were required to turn over user data,” Marc Rotenberg, executive director of the Electronic Privacy Information Center, a nonprofit research group in Washington, said in an e-mail.

Microsoft doesn’t provide direct access to e-mails, instant messages or Skype calls and refuses to grant agencies the ability to break its encryption, Brad Smith, general counsel for the company, wrote in a blog Tuesday.

“Numerous documents are now in the public domain,” Smith wrote in a letter to U.S. Attorney General Eric Holder. “As a result, there is no longer a compelling government interest in stopping those of us with knowledge from sharing more information, especially when this information is likely to help allay public concerns.”

Hearing from the companies, even if it has to be in private, would help the board understand the breadth of the surveillance operations, rather than relying on the Obama administration’s description, Ashkan Soltani, an independent technology researcher who testified before the panel this month, said in an email.

Obama met with the board June 21 and cited its work as important to “a national conversation” about government surveillance programs.

Kate Martin, director of the Center for National Security Studies in Washington, and Michelle Richardson, legislative counsel for the American Civil Liberties Union in Washington, said the board needs some time to get running.

The panel plans to issue a report to Congress with recommendations that could include curbs on NSA powers.

“Both the companies and the government are using ignorance of technical capabilities to put a screen over what is happening,” Martin said in a phone interview. “There is a lot of information board members need to learn before they can have a really useful conversation with the companies.”

Since the NSA programs were exposed, Facebook, based in Menlo Park, Calif., and Yahoo, based in Sunnyvale, Calif., also have said they received warrants from the government compelling them to turn over data about their users. Google has published regular reports on government requests.

Some companies have denied giving authorities direct access to their servers, although thousands of businesses are swapping intelligence with security agencies.

Spokeswomen Samantha Smith of Google and Sarah Feinberg of Facebook declined to comment. Microsoft’s Kathy Roeder and Verizon’s Edward McFadden didn’t respond to requests for comment. Yahoo hasn’t met with the board, spokeswoman Suzanne Philion said in an email.

The board should hear from companies if they can provide valuable insights about the programs, Richardson said in a phone interview.

“We can’t really tell from the outside if it’s necessary yet for the legal and policy decisions that the board is going to make,” she said.

The board was initially suggested by the 9/11 Commission report, in response to laws passed to help authorities fight domestic terrorism. Created in 2004 to be a check on expansive government powers, the panel has been hamstrung by Congress and two administrations and was dormant from 2007 until Medine was sworn in May 29.

Although the board is an independent agency, it doesn’t have subpoena power. It can ask the U.S. Attorney General to subpoena companies and other non-governmental entities.

“Right now, we’re looking for voluntary efforts to come in,” Medine said.

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