An End to Privacy Theater: Exposing and Discouraging Corporate Disclosure of User Data to the Government

Today, when consumers evaluate potential telecommunications, Internet service or application providers – they are likely to consider several differentiating factors: The cost of service, the features offered as well as the providers’ reputation for network quality and customer service. The firms’ divergent approaches to privacy, and in particular, their policies regarding law enforcement and intelligence agencies’ access to their customers’ private data are not considered by consumers during the purchasing process – perhaps because it is practically impossible for anyone to discover this information. A naïve reader might simply assume that the law gives companies very little wiggle room – when they are required to provide data, they must do so. This is true. However, companies have a huge amount of flexibility in the way they design their networks, in the amount of data they retain by default, the exigent circumstances in which they share data without a court order, and the degree to which they fight unreasonable requests. As such, there are substantial differences in the privacy practices of the major players in the telecommunications and Internet applications market: Some firms retain identifying data for years, while others retain no data at all; some voluntarily provide government agencies access to user data - one carrier even argued in court that its 1st amendment free speech rights guarantee it the right to do so, while other companies refuse to voluntarily disclose data without a court order; some companies charge government agencies when they request user data, while others disclose it for free. As such, a consumer’s decision to use a particular carrier or provider can significantly impact their privacy, and in some cases, their freedom. Many companies profess their commitment to protecting their customers’ privacy, with some even arguing that they compete on their respective privacy practices. However, none seem to be willing to disclose, let alone compete on the extent to which they assist or resist government agencies’ surveillance activities. Because information about each firm’s practices is not publicly known, consumers cannot vote with their dollars, and pick service providers that best protect their privacy. In this article, I focus on this lack of information and on the policy changes necessary to create market pressure for companies to put their customers’ privacy first. I outline the numerous ways in which companies currently assist the government, often going out of their way to provide easy access to their customers’ private communications and documents. I also highlight several ways in which some companies have opted to protect user privacy, and the specific product design decisions that firms can make that either protect their customers’ private data by default, or make it trivial for the government to engage in large scale surveillance. Finally, I make specific policy recommendations that, if implemented, will lead to the public disclosure of these privacy differences between companies, and hopefully, create further market incentives for firms to embrace privacy by design.