A Wall Street Journal article yesterday carried a headline of interest to anybody who’s been following the ever-expanding aftermath of the Edward Snowden revelations. “Google’s Eric Schmidt Lambasts NSA Over Spying,” it read, and those who skip past stories in favor of soaking in headlines probably walked away thinking Schmidt had really lit into the spy agency. There’s only one problem: nothing Schmidt said could possibly be construed as “lambasting” under anything but a definition so loose as to render the word completely meaningless.
Schmidt’s tone in the interview was that of an irritated but powerless uncle whose nephew is out of control. His statements, even when they sounded firm, carefully avoided accusations and dealt only in potentialities. “The NSA allegedly collected the phone records of 320 million people in order to identify roughly 300 people who might be a risk. It’s just bad public policy…and perhaps illegal,” he said at one point. When asked about reports that the NSA spied on Google’s data centers, he replied, “It’s really outrageous that the National Security Agency was looking between the Google data centers, if that’s true. The steps that the organization was willing to do without good judgment to pursue its mission and potentially violate people’s privacy, it’s not OK.”
While he does drive home the point that violating everyone’s privacy isn’t a good trade-off to catch a handful of bad guys, Schmidt avoids any mention of the role that his company’s business model has played in allowing such a trade-off to exist. Google’s ascent has been fueled by the data its users provide it. Some of those users have been fully cognizant at all times of exactly what they’ve allowed to be collected, but many more of them have been ignorant of the extent to which the tech giant profiles them and what those profiles are used for. Regardless of how wittingly it is obtained, all this data collection has enabled enormous profits, which now serve the purpose of holding Google hostage. A prisoner of its own success, Google can’t take its operations elsewhere, or pull a Lavabit and shut down entirely, or otherwise retaliate against the government in any meaningful way so long as the current legal environment persists. If it does anything more than send strongly-worded letters of complaint to Congress and the president – the very powers who empower the NSA daily to leverage it surveillance powers on all that data Google and other tech corporations rely on to benefit their shareholders – the company is clearly unsure about what kind of consequences could be leveled upon it. So strong sentiments rule the day. Meanwhile the NSA continues to tap the American public’s communications at will through so many different programs that shutting any one down would do very little to impact its ability to spy on everyone in America regardless of whether they are criminal suspects.
Schmidt is focused on “good judgment” and whether the reported NSA transgressions are legal or “good policy.” The NSA’s repeated defense has been that the press is misconstruing its programs and that it “conducts all of its activities in accordance with applicable laws, regulations, and policies—and assertions to the contrary do a grave disservice to the nation, its allies and partners, and the men and women who make up the National Security Agency.” Trying to get past that stone wall to track down activity that’s illegal under the ridiculously wide-ranging statutes applicable to the NSA, or worse arguing over policy, is playing the game by the agency’s rules.
What Google and other tech companies ought to be talking up instead is the constitutionality of the NSA’s activities. Congress can pass any law, and the executive set any policy, that they desire, but the courts can bring unconstitutional laws to a halt. Nobody at the NSA has been bending over trying to assert that its surveillance is constitutional, and if Google really wanted to make progress they could point this out loudly and clearly. They could also attack the third-party doctrine that makes your data fair game the second you interact with anyone, a necessity for virtually everything people do in modern society that has been exploited by NSA programs to, among other things, collect Americans’ cell phone records and internet traffic. Instead they play the “it’s not nice to spy on us!” card, which is like nicely asking a lion not to eat you for dinner instead of running away first and making polite requests later.
Toward the end of the interview Schmidt mentions that he’s eager to visit North Korea and Cuba as an advocate for free speech. He wants “to convince these governments that “it’s in their interest to open up a little bit,” saying that North Korea in particular “need[s] the Internet for electronic commerce and for business and they are certainly grappling with issues of food availability, education and social unrest.” While open internet access could, in fact, help countries like those become more free, there’s a flip side. Google’s power to profile people could end up helping backward regimes modernize their totalitarian systems. Such a framework has already been built in the United States by the NSA on the back of the data collection so effectively monetized by Google and other American tech corporations. While it hasn’t been used for wide-scale repression in the States, the capability is clearly there and growing. It’s not hard to guess what a crumbling regime used to using Cold War technology to keep tabs on its citizens would do if it suddenly found itself with the unchecked power to discover in stunning detail just who its political enemies are and how they live their lives. Even if Google were to eventually depart those countries like it did with China several years ago, Pandora’s Box would have already been opened, giving them a way to more efficiently repress their citizens – the very opposite of the company’s “don’t be evil” slogan. Being good, it seems, is hard work for anybody who’s in the habit of collecting other people’s data.
