Yahoo and Facebook ask for more NSA transparency

Posted at 1:06 PM, Sep 12, 2013
and last updated 2013-09-12 13:06:07-04

(CNN) — Mark Zuckerberg and Marissa Mayer are limited in what they can say about their companies’ dealings with the NSA, but one thing is clear:

They want more transparency from the U.S. government.

On stage at the TechCrunch Disrupt conference on Wednesday, the Facebook and Yahoo CEOs both expressed frustration toward the government for the way it has handled National Security Agency requests and the secrecy it requires.

“I think the government blew it,” said Zuckerberg.

After information about the NSA and its PRISM program were made public, the government attempted to reassure people by saying it was only collecting information on people outside the United States.

“That’s really helpful to companies who are trying to serve people around the world,” said Zuckerberg sarcastically. “I think that was really bad.”

The U.S. government requests information on foreign users from companies like Google, Facebook and Yahoo through national security related orders like those from the Foreign Intelligence Surveillance Court. A gag order prevents the companies from sharing any information about the requests, including, until recently, that they even existed.

Asked why she didn’t refuse the government’s orders or discuss the national security requests publicly, Mayer said she couldn’t talk about those things because they are classified.

“If you don’t comply, it’s treason,” said Mayer.

Releasing classified information would generally result in incarceration, she added.

“That is definitely not treason,” Kurt Opsahl, a senior staff attorney with the Electronic Frontier Foundation, told CNN.

Revealing classified information or disobeying an order from the FISA Court would most likely fall under the espionage act, Opsahl said. They could be found in contempt of court and there would be a fine, but the penalties would probably be directed at the company, not the executives.

Whatever the potential punishment, Mayer said Yahoo has taken a different but still aggressive approach to dealing with the U.S. government.

“It makes sense for us to work within the system,” Mayer said.

In 2007, Yahoo was one of the first major tech companies to file a lawsuit against the Patriot Act and parts of PRISM and FISA, though the company lost.

“I’m proud to be part of an organization that, from the very beginning … has been skeptical and has scrutinized those requests,” Mayer said.

Yahoo reviews each government request for information, and Mayer said the company pushes back against inquiries “a lot.”

On Friday, Yahoo joined Google, Twitter, Microsoft and Facebook and released its first government transparency report detailing the number of requests it had fielded from countries around the world. It complied with 98% of requests from the U.S. government.

Transparency reports list aggregate numbers of government requests for account data, often broken down by country and the number of individual accounts affected. But companies want to be able to show how many requests were national security related versus common criminal investigations and other situations in which there was a warrant or subpoena.

Facebook also recently released its first transparency report for the first six months of 2013, and while it could say there were 9,000 requests from the U.S. government for user data, it couldn’t specify how many were for the NSA.

“We’ve been pushing just to get more transparency on this and I actually think we’ve made a big difference,” said Zuckerberg.

Tech companies are flexing some legal muscle to get around the gag orders. Yahoo, Google, Microsoft and Facebook have filed lawsuits against the Foreign Intelligence Surveillance Court — Facebook just last week and the other companies in June. They want the U.S. government to allow tech companies to divulge more information about its requests for user data.

“It think it’s my job and our job to protect everyone who uses Facebook and all the information they share with us. It’s the government’s job to protect all of us,” said Zuckerberg.

“I think they did a bad job of balancing those things here.”