Documents leaked by Edward Snowden have shed light on what information governments actually collect about us. The usefulness of transparency reports, such as the one issued by Facebook, therefore hinges on governments abiding by the rule of law.
Transparency reports have traditionally played a critical role in informing the public on the lawful access requests made by governments to companies like Facebook. These reports have provided a useful accountability mechanism for users to know what governments are asking for and how often. Transparency reports also inform users as to what intermediaries are doing to protect their privacy when it comes to sharing data with governments. Given Facebook’s ever-growing presence in the lives of people around the world, we commend them for releasing this report on 27 August 2013 — a release that has been a long time coming.
However, we are left with a disturbingly hollow feeling regarding Facebook’s gesture, and it has little to do with Facebook itself. Since documents leaked by Edward Snowden have been published and analysed, the veil has been lifted on what information governments actually collect about us. We are now aware of a terrifying reality — that governments don’t necessarily need intermediaries like Facebook, Google, and Microsoft to get our data. They can intercept it over undersea cables, through secret court orders, and through intelligence sharing.
The usefulness of transparency reports hinges on governments abiding by the rule of law. We now know that these reports only provide a limited picture of what is going on, and it is time that governments allow companies to speak more freely regarding the orders they receive.
Whereas transparency reports detail lawful access requests, we are living in a world where governments exploit over-permissive, vague and outdated laws with impunity. What is needed is a new strong legal framework that all governments must abide by. Until then companies like Facebook are left with the burden of having to determine what information may be ‘lawfully’ demanded by each country, and deciding what they can or cannot release. This is too much to ask of these companies, and too great a trust to be placed in them.
