With all the screaming about the NSA hacking into our lives, Americans have kind of missed the point. We’ve voluntarily given our lives to private companies for years. Government agents don’t have to hack us. They can simply ask any of these companies for everything they have. The Supreme Court says so. It’s known as the “third-party doctrine.” Give your data to a private company, and you lose your rights to any expectation of privacy. Even if it’s illegal for the Feds to spy on us directly (whatever that means now), it’s perfectly legal for the Feds ask private companies for whatever data they have and use it against us. Data given voluntarily by you to any company can be given voluntarily to the Feds. This odd three-step process is often a mere inconvenience. And if you don’t think it happens, just ask Nico Sell.
Sell is co-founder and CEO of Wickr, a company that enables private messaging. At a recent conference, she told the audience that Wickr was upgrading to better encryption for more privacy. As she tells Max Eddy of PC Mag, Sell was barely off the podium before a Fed walked up to her and casually asked for back-door access to Wickr so the FBI could access users’ secret messages. He said it the way you and I might invite someone to coffee.
“I was surprised the agent asked me because if he had done any homework, he would have known the answer was no. Doesn’t he use surveillance?:) Or at least Google? I think he was trying to intimidate me,” Sell told me. ” If this was the first time I had dealt with the FBI, I would have been scared.”
Sell says she turned the tables on the agent. She started asking for official documentation, asked who his boss was, and so on. He slunk off, tail between his legs. But you and I know many companies are star-struck by the business card with the FBI logo, and say yes. Others fear they don’t have a choice, or don’t know better. Sell even admits that she might have caved when she was younger. After all, who doesn’t want to help catch bad guys?
That’s how this works. As a reporter, I’ve had plenty of encounters with agents who asked me to share what I know. In fact, once, I was even summoned before a grand jury. Fortunately, I had a boss named Merrill Brown who forcefully explained to me that reporters don’t do cops’ work for them.
The Edward Snowden disclosures are fascinating because they demonstrate the radical steps our government will take to make sure that no one, no where, can keep a secret. Note that in Sell’s story, the agent was not hot on the trail of a terrorist. He was just looking to open a one-way communication channel for future fishing expeditions. As anyone who’s ever interfaced with the FBI or other three-letter agencies in this manner knows, the agency wants to suck up every piece of information in the world, but doesn’t want to share a thing about what it’s doing. It wants to make sure there are no secrets. Often, all that requires is a simple question.
It’s great we are all engaged in the dialog now – for now. But I fear we’ve lost sight of the real problem. Americans share everything about themselves with hundreds, even thousands of companies every day. And those companies often have casual relationships with law enforcement to rat us out. By the time all the hearings and lawsuits are over, I’m sure there will be strict new “procedures” limiting when the NSA can and can’t hack into Google’s computers and hijack our digital lives. But that won’t matter much if agents can keep making their casual sales pitches to people like Nico Sell.