Jun 18, 2021 - Technology

The feds' dangerous data-grab game

Illustration of a cursor clicking on a folder with an American flag inside
Illustration: Sarah Grillo/Axios

Recent revelations about Trump-era data grabs by federal authorities have put the U.S. in a tricky spot as it competes with China to lead the digital age.

The assumption in the West is that U.S. tech companies only provide the government with data when it follows the rules and goes after specific suspects — while, in China, tech companies are forced to share everything with the government.

Yes, but: Reality is messier.

  • As the Trump Justice Department pursued leaks and critics in Congress, the media and the White House itself, it obtained court orders to scoop up data from Apple, Microsoft and other tech providers.
  • Then courts put the companies under gag orders that blocked them from warning their customers they'd been targeted — or even revealing the existence of the gag orders themselves.

Why it matters: The frequency and possible partisan motivation of these U.S. data grabs could undercut U.S. leverage as it rallies allies to oppose China and negotiates a new agreement with Europe on data sharing and storage.

Microsoft president Brad Smith called for an end to such secret court orders in a recent Washington Post opinion piece.

  • He noted that, as more and more personal communications get backed up to cloud providers, the potential targets for such orders are multiplying.

Between the lines: Tech companies generally follow a single standard for dealing with governments around the world: they obey the local laws of the country where they are doing business.

  • In most cases, at government request, tech providers offer up metadata like call logs rather than the content of communications. But that can be revealing enough.
  • Sometimes operating under local laws proves impossible or unconscionable, and the companies pull out or get kicked out, as happened a little over a decade ago to Facebook and Google search in China.

On occasion, the U.S. government has pressed tech companies further than they are willing to go.

  • Apple fought an FBI request that it create a version of its operating system that would give the agency access to an encrypted iPhone used by a shooter in a 2015 San Bernardino mass killing.

More often, though, tech companies find their hands tied because a legal entity has served them with a valid order.

  • Firms have fought back with transparency reports or the use of a warrant canary to signal to the public when they have been forced to covertly provide customer information.

Flashback: The Trump-era gag orders continue a long tradition of the U.S. government simultaneously grabbing data from tech companies and demanding their silence, dating back to the FISA courts created in the wake of the 9/11 attacks.

  • The Snowden revelations showed how the NSA managed to get bulk data from telecom firms in that era.
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