Social Media Companies Object to Government Monitoring – Principled Concern or Commercial Hypocrisy

In response to the revelations about NSA monitoring, companies like Google have stepped up their efforts to protect the privacy of their users. Among other things, Google announced that they are encrypting all of their data to try to protect against spying by the NSA and other state actors.

In addition, Google, Facebook, Microsoft and Yahoo have filed suit in the now somewhat famous (but still secretive) Foreign Intelligence Surveillance Court (usually called the FISA Court in the media) seeking to publish more information about the NSA’s PRISM program and, presumably, how they tried to resist it. Google and Facebook have both used the argument that media descriptions of tech companies as pliant partners in the NSA’s monitoring have hurt their image and their business. Google’s motion claims that “Google’s reputation has been harmed by what it calls “false or misleading” press reports about the company’s relationship with the National Security Agency.”

If this is genuine concern for protecting their customers’ data from intrusive and unwarranted surveillance, which, in the case of Google, at least, you’d expect from a company who’s original motto was “Don’t be evil,” then that’s a good thing.

But this sudden focus on protecting consumer data might have a little self interest, as well.

The scope and extent of NSA monitoring of online activity has many people considering the degree to which they expose information online. According to a new survey from the Pew Internet and American Life project:

[M]ost internet users would like to be anonymous online, but many think it is not possible to be completely anonymous online. Some of the key findings:

– 86% of internet users have taken steps online to remove or mask their digital footprints—ranging from clearing cookies to encrypting their email.
– 55% of internet users have taken steps to avoid observation by specific people, organizations, or the government.

In the same vein, Omnicom Media’s Annalect service recently reported results of a survey that showed, among other things:

– 51% of users are unclear about how their information is collected and used.
– 57% are worried that their personal information is shared without their consent.
– 66% feel a lack of control over how their information is collected, tracked and shared.
Most notably for social media companies:
– 74% of users’ perception of a company would be negatively impacted if they discovered they were being tracked by the company without their knowledge.
– 77% of consumers have altered their online and offline behaviors to protect their online privacy.

This type of behavior can have significant consequences for businesses that make their money from online advertisers, and recent actions of some of these players indicate that these companies might be more interested in the threat to their profits than the principle of protecting customer privacy. (For steps you can take to protect your information online, see this previous post – Privacy and Data Security for the Normal Person.)

Consumer Watchdog has reported on a motion filed by Google on Sept. 5 in the United States District Court for the Northern District of California with regards to ongoing litigation challenging how the company operates its free email service.

The motion, which asks the court to dismiss a class action complaint against the company, says Gmail users should assume that any electronic correspondence that’s passed through Google’s servers can be accessed and used for an array of options, such as selling ads to customers.

“Just as a sender of a letter to a business colleague cannot be surprised that the recipient’s assistant opens the letter, people who use Web-based email today cannot be surprised if their emails are processed by the recipient’s [email provider] in the course of delivery,” the motion reads in part. “Indeed, ‘a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.’”

So, the essence of Google’s arguments is that users voluntarily gave their information to Google, so Google should be able to use it in any way they want, but Google doesn’t want the government to have unlimited access to that information. It’s easy to imagine Facebook and other social media companies whose business model is based on targeting advertising based on user-disclosed information making the same argument.

As they say, “If you’re not paying for it, you’re not the customer – you’re the product.” It seems that Google (and probably the others, as well) are objecting to the government diminishing the value of their product rather than taking a principled view on consumer privacy.


About John Nicholson

I'm a transactional attorney who focuses on structuring and negotiating large outsourcing transactions (both on and offshore). As part of my work, I've specialized in: - Structuring and negotiating large outsourcing transactions (both on and offshore) including IT outsourcing and various BPOs (including HRO, Facilities Management, Procurement, Finance and Accounting), large systems development and implementations; - Assisting with development of RFPs, proposal evaluation, down select, and negotiation; - US and European privacy laws, including US Safe Harbor, and state privacy and data breach notification laws; and - Privacy, security, legal and contractual issues associated with cloud computing. I'm a frequent speaker on outsourcing, privacy and security issues. Before becoming a lawyer, I was the acting IT director for a mid-size company prior to hiring the CIO and project manager for the company's Oracle Financials implementation.
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