What Would Judge Leon Say About The 'Big 8'?

Special to Dark Reading

Mark Weinstein is a privacy advocate, author of the "Habitually Great" book series, and founder and CEO of Sgrouples.com, a new type of social network built on a Privacy Bill of Rights for its members.

U.S. District Court Judge Richard Leon stated in his Dec. 16 ruling against the National Security Agency (NSA) that Founding Father James Madison "would be aghast" at how our government encroaches on our personal liberties. While undoubtedly true, the reality is that Madison's shock and disappointment would extend far beyond our government.

Case in point: Just a week later, the "Big 8" major technology companies, including Apple, Facebook, Google, Microsoft, and Twitter, joined forces in an open letter asking the U.S. government to enforce tighter controls on government surveillance. First off, I commend them for their efforts. Our power to achieve becomes unlimited when we unite in one voice against what we perceive as inequities or injustices.

But let's get to the heart of the matter here. The statement set forth by these companies, individually or together, represents the penultimate in hypocrisy. The very words they use against our government and in support of protection of our individual rights are the very practices they put into place within their own corporations.

Let's look at their statement:

"The balance in many countries has tipped too far in favor of the state and away from the rights of the individual -- rights that are enshrined in our Constitution. This undermines the freedoms we all cherish. It's time for a change."

That statement is absolutely true. At the same time, if you replace the word "state" with Facebook, Google, or the names of any of the Big 8, that statement is also true. You see, those companies all collect information about what you do on the Internet. They store your email messages. They track your search queries. They follow your payments and plenty more personal information. This is not conjecture, mind you, but fact.

In a July 31, 2013, article for The Wall Street Journal, Amir Efrati pointed out in detailed diagram form how Google compiles a portfolio of you based on where you go and what you do online. Facebook similarly gathers information on you through activity on its site as well as any activity on a Web site that has a Facebook "Like" box tagged onto it. In terms of the latter, in case you didn't know, that includes compiling a portfolio of non-Facebook users interacting with those partnered sites.

Make no mistake here. These companies are not the white hat or prince in shining armor here. They are the wolf in sheep's clothing. What they are doing is damage control, which under the circumstances makes total sense. Brad Smith, Microsoft's general counsel, let the cat out of the bag when he said,"People won't use technology they don't trust." I agree wholeheartedly. The problem is these companies want to give the impression they are trustworthy through their press releases and public relations, which counter their data-spying practices and privacy infringements.

They say they want to limit the government's authority to collect user information. Amen to that. What they don't say anything about is limiting their own authority. It's the classic, "Do as I say, not as I do" defense, because when it comes down to it, everything they want the government to do should be practiced by all Internet companies.

Chris Soghoian, a senior analyst with the American Civil Liberties Union, correctly calls out how these companies should have been crying for reform before Ed Snowden's disclosures and the whole NSA mess. But they didn't, and that's indicative of where they stand on the issue. They will take a stand when the public cries for one, not because of any sense of moral justice or protection of inalienable rights.

Balancing individual rights with public safety is an important debate and one worth creating legislation for that protects individual rights. At the same time, those same laws should apply to Internet companies to protect our privacy and outlaw data scraping.

James Madison may have died close to 200 years ago, but the truths he set forth in the U.S. Constitution still stand as the laws of our land for citizens and companies alike. While the technology behemoths act as if they are on your side, they are truly acting on their own behalf. They don't want to change their egregious methods of operation, yet they don't want to appear greedy or untrustworthy toward the public. But change they must to dispel the unsavory practices they support, and attacking the U.S. government for its own faults merely ignores the real problem. Next time, they should direct the letter toward the government and cc: themselves.

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