A Small Rule Change That Could Give the U.S. Government Sweeping New Warrant Power

Posted by Richard Salgado, Legal Director, Law Enforcement and Information Security

At the request of the Department of Justice, a little-known body — the Advisory Committee on the Rules of Criminal Procedure — is proposing a significant change to procedural rules that could have profound implications for the privacy rights and security interests of everyone who uses the Internet.  Last week, Google filed comments opposing this change.

It starts with the Federal Rule of Criminal Procedure 41, an arcane but important procedural rule on the issuance of search warrants.  Today, Rule 41 prohibits a federal judge from issuing a search warrant outside of the judge’s district, with some exceptions.  The Advisory Committee’s proposed change would significantly expand those exceptions in cases involving computers and networks.  The proposed change would allow the U.S. government to obtain a warrant to conduct “remote access” searches of electronic storage media if the physical location of the media is “concealed through technological means,” or to facilitate botnet investigations in certain circumstances.  

The implications of this expansion of warrant power are significant, and are better addressed by Congress.  

First, in setting aside the traditional limits under Rule 41, the proposed amendment would likely end up being used by U.S. authorities to directly search computers and devices around the world.  Even if the intent of the proposed change is to permit U.S. authorities to obtain a warrant to directly access and retrieve data only from computers and devices within the U.S., there is nothing in the proposed change to Rule 41 that would prevent access to computers and devices worldwide.

The U.S. has many diplomatic arrangements in place with other countries to cooperate in investigations that cross national borders, including Mutual Legal Assistance Treaties (MLATs).  Google supports ongoing efforts to improve cooperation among governments, and we are concerned that the proposed change to Rule 41 could undermine those efforts.  The significant foreign relations issues associated with the proposed change to Rule 41 should be addressed by Congress and the President, not the Advisory Committee.

Second, the proposed change threatens to undermine the privacy rights and computer security of Internet users.  For example, the change would excuse territorial limits on the use of warrants to conduct “remote access” searches where the physical location of the media is “concealed through technological means.”  The proposed change does not define what a “remote search” is or under what circumstances and conditions a remote search can be undertaken; it merely assumes such searches, whatever they may be, are constitutional and otherwise legal.  It carries with it the specter of government hacking without any Congressional debate or democratic policymaking process.  

Likewise, the change seemingly means that the limit on warrants is excused in any instance where a Virtual Private Network (VPN) is set up.  Banks, online retailers, communications providers and other businesses around the world commonly use VPNs to help keep their networks and users’ information secure.  A VPN can obscure the actual location of a network, however, and thus could be subject to a remote search warrant where it would not have been otherwise.   
 
The Advisory Committee is entertaining a dramatic change to electronic surveillance rules.  Congress is the proper body to determine whether such changes are warranted, and we urge the Committee to respect Congress’ traditional role in prescribing the substantive rules governing electronic surveillance.

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Transparency Report: Government demands for user info have risen 150% over the last five years

Today, we’re updating our Transparency Report for the tenth time. This update details the number of government demands we received for user information in criminal investigations during the first half of 2014. The update also covers demands for user information under the Foreign Intelligence Surveillance Act (FISA) and through National Security Letters (NSLs).

Worldwide, the numbers continue to rise: excluding FISA and NSL demands, we’ve seen a 15% increase since the second half of last year, and a 150% jump since we first began publishing this data in 2009. In the U.S., those increases are 19% and 250%, respectively.

This increase in government demands comes against a backdrop of ongoing revelations about government surveillance programs. Despite these revelations, we have seen some countries expand their surveillance authorities in an attempt to reach service providers outside their borders. Others are considering similar measures. The efforts of the U.S. Department of Justice and other countries to improve diplomatic cooperation will help reduce the perceived need for these laws, but much more remains to be done.

Governments have a legitimate and important role in fighting crime and investigating national security threats. To maintain public confidence in both government and technology, we need legislative reform that ensures surveillance powers are transparent, reasonably scoped by law, and subject to independent oversight.

The USA FREEDOM Act, introduced by Senators Leahy (D-VT), Lee (R-UT), Franken (D-MN) and Heller (R-NV) would prevent the bulk collection of Internet metadata under various legal authorities, allow us to be more transparent about the volume, scope and type of national security demands that we receive, and would create stronger oversight and accountability mechanisms. Congress should move now to enact this legislation into law.

Congress should also update the Electronic Communications Privacy Act to make it clear that the government must obtain a search warrant before it can compel a service provider to disclose the content of a user’s communication. Legislation introduced in the House by Representatives Yoder (R-KS), Graves (R-GA) and Polis (D-CO) and in the Senate by Senators Leahy (D-VT) and Lee (R-UT) would create a warrant-for-content standard that protects the Fourth Amendment rights of Internet users.

This common-sense reform is now supported by a broad range of consumer groups, trade associations, and companies that comprise the Digital Due Process coalition. Additionally, more than 100,000 people have signed a petition urging the White House to back this bill, which enjoys bipartisan support from 266 House Members (well over a majority of the House) and passed the Senate Judiciary Committee in April 2013.

There is a growing consensus in support of these reforms. In the remaining days of this session, Congress has a chance to pass historic legislation that will help restore trust that has been lost. We urge them to seize upon this opportunity.

Posted by Richard Salgado, Legal Director, Law Enforcement and Information Security


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A step toward government transparency

Posted by Richard Salgado, Director Law Enforcement and Information Security

Last year, President Obama directed the Intelligence Community to be more transparent about government surveillance programs, which led to a promise by the Office of the Director of National Intelligence to release a transparency report concerning national security orders it issues on an annual basis. Today, the U.S. government released its first transparency report containing statistics around national security orders for user data to Internet and telecom companies. This is a step in the right direction of increasing trust in both government and Internet services, and it demonstrates again that governments can embrace transparency while protecting national security. We applaud this first step, and strongly encourage other countries to follow suit, though there is still more to be done.

First, the government reports in a manner that makes it impossible to compare its report with the report of companies, such as the Google Transparency Report. Specifically, the government has chosen to disclose an estimated number of “targets” that it has surveilled, rather than the number of “accounts” at issue. This means that where the “target” is an organization composed of many people, and the government uses FISA to require disclosure of information from many different providers about the many accounts used by those people, covering a broad array of services, it may only report that there was one target. By contrast, in our methodology, and that used by other companies, we each would count the number of accounts impacted by a particular surveillance request. The government could provide more meaningful transparency by specifying the number of accounts too.

Second, we would like to see the federal government report on its national security demands with more information about the targets than it does today. Companies like Google can only provide a limited snapshot of how national security authorities are used. The Department of Justice, however, can provide a complete picture. To that end, we support legislation proposed by Senator Franken in August of 2013 that would mandate that the U.S. government release statistics around the number of both citizens and non-citizens whose information is collected and the scale and scope of the search and review of that data.

Finally, we gave early support for USA Freedom Act provisions which would allow companies to provide greater detail about the volume, scope, and type of national security demands that we ourselves receive for user data. Last month, the House version of the USA Freedom Act made improvements on the terms set out by the Department of Justice, and we hope that the Senate paves the way for companies to share more details about the national security demands that we receive.

I’m excited to see how far this debate has come; a year ago almost no one would have imagined that the federal government would release data about its national security demands to companies. These steps show that national security and transparency for the public are not in competition. We also hope that governments around the world will follow the lead of the U.S. government and be more open about the national security demands they serve on service providers and put out comparable transparency reports. Congress, and other governments around the world, should build on these steps.


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Transparency Report: Requests for user information up 120 percent over four years

Posted by Richard Salgado, Legal Director, Law Enforcement and Information Security


While we’ve always known how important transparency is when it comes to government requests, the events of the past year have underscored just how urgent the issue is. From being the first company to disclose information about National Security Letters to fighting for the ability to publish more about FISA requests, we’ve continually advocated for your right to know.


Today, we’re updating our Transparency Report for the ninth time. This updated Report details the number of government requests we received for user information in criminal investigations during the second half of 2013. Government requests for user information in criminal cases have increased by about 120 percent since we first began publishing these numbers in 2009. Though our number of users has grown throughout the time period, we’re also seeing more and more governments start to exercise their authority to make requests.


We consistently push back against overly broad requests for your personal information, but it’s also important for laws to explicitly protect you from government overreach. That’s why we’re working alongside eight other companies to push for surveillance reform, including more transparency. We’ve all been sharing best practices about how to report the requests we receive, and as a result our Transparency Report now includes governments that made less than 30 requests during a six-month reporting period, in addition to those that made 30+ requests.

We also call on Congress to pass legislation that would update the Electronic Communications Privacy Act (ECPA) to require governmental entities to obtain a warrant before they can compel online companies to disclose the content of users’ communications. As we have noted previously, legislation introduced by Senators Leahy and Lee (R-Utah) in the Senate and Representatives Yoder (R-Kan.), Graves (R-Ga.), and Polis (D-Colo.) in the House would achieve that goal. This legislation enjoys broad, bipartisan support, and we urge Congress to move quickly toward enacting legislation that would update ECPA in a manner that comports with how people use the Internet today. Moreover, more than 110,000 people have signed a White House petition, asking the Administration to support legislation that would update ECPA in this manner.


Also, people have been asking about how we respond to search warrants in the U.S., so we’ve created an entertaining video to explain in plain language how this process works. We apply the same rigorous standards presented in this video to every request we receive, regardless of type.




You deserve to know when and how governments request user information online, and we’ll keep fighting to make sure that’s the case.


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It’s time to reform government surveillance laws

Posted by Susan Molinari, VP Public Policy 

The revelations about government surveillance practices—both in the U.S. and globally—over the past eight months have sparked a serious and overdue debate about the nature and scope of existing laws and programs. Today, many organizations and companies are participating in “The Day We Fight Back,” a series of events and awareness campaigns highlighting the urgent need for surveillance reform around the world.

Google recognizes the very real threats that the U.S. and other countries face, but we strongly believe that government surveillance programs should operate under a legal framework that is rule-bound, narrowly tailored, transparent, and subject to oversight.

In December, along with other technology companies, we unveiled a set of government surveillance reform principles that address many of the recent concerns around government surveillance. In Congress, Representative Sensenbrenner (R-Wis.) and Senator Leahy (D-Vt.) have introduced legislation—the USA Freedom Act—that would codify many of these principles. As they both noted when introducing this bill, government surveillance programs “have come at a high cost to Americans’ privacy rights, business interests and standing in the international community.”

The USA Freedom Act reflects some of the key recommendations made by the President’s Review Group on Intelligence Communications and Technologies as well as the Privacy and Civil Liberties Oversight Board. We support this legislation and we urge Congress to enact it into law.

But there’s more that can be done as we consider appropriate reforms to government surveillance laws. Congress should update the Electronic Communications Privacy Act (ECPA) to require governmental entities to obtain a warrant before they can compel online companies to disclose the content of users’ communications. Legislation introduced by Senators Leahy and Lee (R-Utah) in the Senate and Representatives Yoder (R-Kan.), Graves (R-Ga.), and Polis (D-Colo.) in the House would achieve that goal. More than 100 companies, trade associations, and consumer groupsand more than 100,000 Americans—have signed on to support this important update to ECPA, which no longer reflects users’ reasonable expectations of privacy.

We will continue to press Congress to adopt these important measures, which would represent significant progress in the broader effort to reform government surveillance laws. If you want to receive updates from us, please visit google.com/takeaction and sign up.


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A petition for greater transparency

Posted by Richard Salgado, Director, Law Enforcement & Information Security and Pablo Chavez, Director, Public Policy and Government Affairs

Today we filed an amended petition [PDF] in the U.S. Foreign Intelligence Surveillance Court. This petition mirrors the requests made to Congress and the President by our industry and civil liberties groups in a letter earlier this year. Namely, that Google be allowed to publish detailed statistics about the types (if any) of national security requests we receive under the Foreign Intelligence Surveillance Act, including Section 702. Given the important public policy issues at stake, we have also asked the court to hold its hearing in open rather than behind closed doors. It’s time for more transparency.

In addition, along with a number of other companies and trade associations, we are also meeting the President’s Group on Intelligence and Communications Technologies today. We’ll reiterate the same message there: that the levels of secrecy that have built up around national security requests undermine the basic freedoms that are at the heart of a democratic society.


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Congress, now live on YouTube

Posted by

Robert Kyncl, Vice President, Global Head of Content Partnerships for YouTube

& Susan Molinari, Vice President, Public Policy and Government Relations


Video plays a powerful role in bringing us closer together, especially when it connects people in real time. By transcending borders, empowering citizens, and increasing transparency, it’s one of the many ways technology allows democracy to thrive. Starting this week, all members of the U.S. Congress will have the opportunity to access enhanced features on their YouTube channels, including the ability to live stream video.


Live video is already allowing elected officials and their constituents to reach one another in innovative ways. Thousands tuned in to YouTube to watch the president’s State of the Union address and the corresponding Republican response this February. Engagement is growing across many types of platforms — Google+ Hangouts, for example, have sparked face-to-face conversations on topics ranging from gun control to the national economy and have allowed people on the other side of the world to share their stories at Congressional hearings.


If you’re a member of Congress and would like to know more, check out these Dear Colleague letters issued by the House and Senate. Whether it’s to share a look into your daily work, broadcast speeches and meetings, or showcase events in your state or district, we can’t wait to see how you connect with your constituents.


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