Despite their repeated denials, Google and Facebook simply can’t shake off the question: Are they lying about the spying?
“I only care when they are subpoenaed under oath,” Ray Wang, chief executive of Constellation Research, a technology research organization, tweeted Thursday. “For now, all lies.”
“But if they are legally obliged to deny receiving the requests, what then? Take the 5th?” someone else replied.
That exchange underscored the dilemma faced by Google and Facebook in the unfolding scandal caused by the revelation of the clandestine data-gathering program called PRISM run by the National Security Agency. Given their dominant positions on the web, much attention has been focused on the two Silicon Valley powerhouses.
They’ve led other internet companies, including Yahoo and Microsoft, in rejecting allegations that they’ve worked directly with the NSA in the systematic and secret mining of user information.
But their public-relations blitz has yet to put doubt to rest. That’s because of a legal bind the companies face: Federal law may bar them from disclosing information about what data the government has compelled them to disclose.
In other words, Google and Facebook can deny all they want in news releases and open letters. But the fact is that they could end up in trouble for saying too much about what the federal government has made them do.
Google and Facebook declined to offer additional comments for this report, beyond their initial statements on the controversy.
It didn’t help that Google chief executive Larry Page and Facebook CEO Mark Zuckerberg used similar language in denying the spying charges when the controversy broke last week.
“We hadn’t even heard of PRISM before yesterday,” Zuckerberg wrote in his status update, echoing the phrasing found in a blog post by Page.
“Meaning they called it something else,” Eva Galperin, an analyst with the Electronic Frontier Foundation, speculated of those denials.
“The primary stumbling block is (that) there may have been a gag order which prevented them from saying anything,” she told MarketWatch. “If you look very carefully at their denials, these were carefully worded denials.”
But are Page and Zuckerberg lying? Not necessarily, Galperin allowed. “It’s misleading,” she said of denials from the companies and their CEOs. “It’s possibly disingenuous, but it’s not lying.”
Behnam Dayanim, a partner with the Paul Hastings law firm in Washington, D.C., said he shares that view. “I would be very surprised if these companies had misstated,” he told MarketWatch. “I suspect that their statements are true, but probably incomplete, in part, because they’re prohibited from being complete because they can’t disclose details.”
In fact, Google and Facebook appeared to tip their hands in other pronouncements in reaction to the spying scandal.
Four days after Page’s denial in a post titled “What the … ?”, Google sent a letter to the Justice Department and the Federal Bureau of Investigation asking to be permitted to disclose more information on government data requests.
The Tuesday letter mentioned the law called FISA, or the Foreign Intelligence Surveillance Act, which gives government broad powers to access private information, including those collected by tech companies.
While again denying that Google gives the government “unfettered access” to its network, the company’s chief legal officer, David Drummond, argued that “government nondisclosure obligations regarding the number of FISA national security requests that Google receives, as well as the number of accounts covered by those requests, fuel that speculation.”
He added: “Google has nothing to hide.”
But to Galperin, the letter strongly hinted at what Google may be hiding, as the company effectively admitted that it has been handing over information based on FISA rules.
She called the request “the best indication” that Google has been handing over a great deal of information. “The initial denial followed by a lot of backtracking is what we’re seeing here,” she said.
The backtracking itself may be tricky, since, if there was a gag order, Google has essentially broken it. Which is why Dayanim speculated that Google and the other companies may have even notified the government – or asked its permission – before publicly calling for more transparency.
“I would not be surprised if we found out later on that those companies advised the government that they would like to put out the statements and to seek approval,” he said.
Galperin likened the speculative situation as “a game of ‘Mother, May I?’ ” in which the companies are forced to ask, “Can we include this other thing?”
The push for more transparency may have been the best way out of the legal and public-relations bind, Dayanim said. After all, “the program has already been disclosed by the leaks. I suspect that the companies felt they had no choice.
“We don’t really know the full story,” he continued. “We know what was leaked. We hear some partial denials.
“Clearly, further discussion” of the transparency rules “is in their interest,” he added, “or they would not be asking for it.”