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Were these companies complicit in providing our private data, as they were "legally" obliged to?

by Josef Kafka

Were these companies complicit in providing our private data, as they were "legally" obliged to?

The confidentiality of communications, be they personal or commercial, is one of the most important factors underpinning our modern society. In a world where civil rights continue to be diminished and liberty is constantly under threat, the idea that an individual’s private communications can secretly be intercepted by government agencies is, quite rightly, a major cause for concern.

The revelations of the whistle blower Edward Snowden, together with his release of secret government documents, have not only undermined public confidence in companies such as Google, Yahoo and others but also in that of governments around the world, especially those of the UK and the US.

The secret surveillance and data collection project known as ‘Prism’, operated under the auspices of the US National Security agency (NSA), has called into question the integrity and honesty of major corporations whose products and services are used daily by millions of ordinary people. Google, Yahoo, Apple, Microsoft and even Facebook have all been accused, in one form or another, of being knowingly complicit in the secret collection of personal data, not only by the NSA but also by the UK’s Government Communications Headquarters (GCHQ).

Indeed, it has been suggested that GCHQ regularly uses its alliance with the NSA in order to circumvent UK law, allowing the spy agency to gather and inspect communications data to which it otherwise would not legally have access. Similarly, the NSA uses data collected by GCHQ in order to avoid legal restrictions imposed upon the NSA under US law.

Initially, the PR departments of Google, Yahoo and the other companies accused went into overdrive and denied any involvement in allowing governments to gather private information being transmitted across their networks. Now however, it has been stated by an NSA senior lawyer, Rajesh De, that not only did the companies allow interception but that they were also under a legal obligation to do so. There has so far been no official response from the accused companies to De’s statement. Unsurprisingly, there has been no comment from GCHQ either.


According to the companies, they had no knowledge that any information or data was being intercepted, secretly or otherwise. These assertions however are contradicted by De, who states that collection of data under Prism was “a compulsory, legal process” and that any company involved would have been in receipt of legal instructions to that effect.

The American legislation supposedly allowing the interception of confidential and private data, the Fisa Amendments Act or Section 702, was passed in 2008. This legislation retrospectively extends the law brought in by George W Bush after the 9/11 disaster and allows the secret collection of data in an attempt to gain foreign intelligence material. The secret Fisa court is supposed to oversee and ensure legal compliance in intelligence matters but, given the latest Snowden revelations, it seems to be having some difficulty in carrying out its remit.

The denials of involvement by the companies must be suspect. Apple originally claimed ignorance of Prism whilst Facebook founder, Mark Zuckerberg has already been in touch with American president, Barack Obama to say that the current US policy on data interception is "damaging the future for everyone."

In terms of whether or not Google and the other major corporations knew that confidential information was being collected by US and UK government agencies, it would seem that either the companies are lying or the UK and US governments are lying. At the very least, it is apparent that both are trying to mislead and confuse the rest of us.

Meanwhile, the UK government is just as reluctant to offer transparency as their US cousins. The law in the UK which governs the gathering of intelligence and any ‘investigations’ carried out by intelligence agencies, the Regulation of Investigatory Powers Act 2000, is so broadly drafted that it effectively enables spies to do whatever they want with absolute impunity. The only comment from the UK's official watchdog, the Interception of Communications Commissioner, was that “It’s an extremely difficult act of Parliament to get your mind round.”


Whilst the US Senate intelligence Committee berates the use of the so-called “back door search loophole” used by the NSA and GCHQ, the Committee seems powerless to do anything about it. At the same time, GCHQ told a recent Parliamentary committee that, “GCHQ always operate within the law”; a statement that is completely meaningless if the law can be interpreted in any way in which the security services deem desirable.

In the end, whether or not Google, Yahoo and the others are passing our emails and other communications onto spy agencies, or at the very least allowing them to intercept communications between data centres, it is a very undesirable situation when the confidential communications of citizens are regarded as being the property of government.

Everyone at 247 Investigations takes client confidentiality extremely seriously. It is most alarming that both the US and UK governments are not prepared to do the same.

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