Online Service Providers and Surveillance Law Transparency
125 Yale Law Journal Forum 343 (2016)
16 Pages Posted: 3 May 2016
Date Written: March 3, 2016
The Snowden disclosures, and others that followed, illuminated a troubling feature of surveillance law: examining the statute books and other public sources of law can paint a radically incomplete or even misleading picture of how the government actually construes its legal authority to conduct surveillance. This observation raises profound anxieties about public democratic control of the surveillance state. These anxieties make a hard question very salient: how can we ensure a measure of transparency about how surveillance laws have been interpreted in practice?
This Essay argues that online service providers and other companies that mediate our digital communications are in a special position to enhance surveillance transparency. Because these private companies are subject to surveillance orders, they (or some of their employees) are privy to information that the rest of public is not: they know what kinds of information the government demands of them under a given surveillance law, and how those laws are being used.
If these companies could win the right to speak about the kinds of records the government is ordering them to disclose, they would be able to provide the public with crucial information about how the surveillance laws have been interpreted and applied in practice. This kind of limited disclosure would do much to allay democratic anxieties about secret reinterpretations of surveillance laws, and it need not reveal truly sensitive operational detail like the targets of surveillance, the circumstances in which particular surveillance tools are used, or other sensitive investigatory matters.
The law currently forbids companies from engaging in this kind of speech, because gag orders routinely prevent companies from disclosing nearly everything about the surveillance orders they receive. It need not remain so. This Essay offers a First Amendment strategy that online service providers (and others subject to surveillance orders) could pursue to reclaim their right to speak and to inform their customers and the public about how surveillance laws have been interpreted in practice.
Keywords: surveillance, transparency, Section 215, National Security Letter, NSL, First Amendment, gag order, prior restraint, digital intermediaries, online service providers
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