Tell corporations: Don't help the NSA spy on us!

CREDO action
How companies can help save the Constitution when the president won't

The petition reads:
"Corporations in America can help defend the Constitution even when the president and Congress won't. We call upon companies to act as principled stewards of their customers' private communications and affirmatively take action to protect the First and Fourth Amendment rights of Americans."

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Dear 5849376,

Since 9/11, many of our fundamental civil liberties have been eroded the name of "national security."

And unfortunately, electing a former constitutional law professor as President of the United States hasn't helped turn back the systematic abuse of civil liberties initiated by the Bush administration.

Ironically, one promising hope for restoring a constitutional balance of powers in the post-Bush era may come as a result of companies -- from the big telecoms to internet upstarts to small independent bookstores -- daring to act as principled stewards of their customers' private communications and taking affirmative action to protect the rights of citizens while still complying with all applicable federal laws.

Tell companies to help save the Constitution even if the president and Congress won't.

If news reports are accurate, the recently revealed NSA programs that are collecting massive amounts of information about the telephone calls and internet activity of American citizens put at grave risk our rights to exercise our First Amendment rights free from government surveillance or intrusion and our Fourth Amendment rights against unreasonable search and seizure.

While there is much we still do not know, it is clear that the NSA spying programs rely on the active participation of private companies to find and collect massive amounts of detailed private information about citizens who have not been suspected of any wrongdoing. What's more, ever since 9/11 companies ranging from bookstores to credit card companies to rental car agencies have been subject to requests under Section 215 of the PATRIOT Act.

In all these instances it's evident that some companies have actively helped the government to spy on their own customers or the public at large in ways that may go well beyond what is required by law.

Make sure that companies know their customers want them to help protect the Constitution, especially if our government won't.

The first step is becoming educated. Many companies simply do not know what their rights are when facing a request, secret or otherwise, from a U.S. law enforcement or security agency.

Here are a few things the owners and employees of companies, from Internet giants to bookstores, can do -- and what their customers and users should demand they do -- to comply with the law, defend the Constitution and protect the rights of law-abiding citizens not to be spied on by their government.

  • Adopt clear policies that commit the company to informing its customers to the extent legally possible whenever it turns its customers' private information over to a government agency.

  • Do only what's required by law. Companies should check out legal options carefully before handing over information to authorities. For example, under federal telecommunication statutes, government entities may obtain basic user information with a subpoena, but they generally need a warrant or other court order for more detailed records.

  • Challenge clearly unconstitutional requests like National Security Letters. An NSL is a request for private information usually from the FBI without a court order that includes a gag that prevents a company from even telling anyone it received a request. NSLs have already been declared unconstitutional in federal court, but the government is still issuing them while it appeals that decision. If a company receives one, it should inform the government that it intends to challenge the legality of the NSL.

  • If a company receives a FISA order or a PATRIOT Act Section 215 order that it believes is illegal or overly broad, it should challenge it in the Foreign Intelligence Surveillance Court (a secret court that has no oversight which issues both types of orders). A FISA order authorizes surveillance of foreign intelligence operations. A Section 215 order allows the government to obtain "any tangible thing" relevant to a terrorism investigation -- from what books you bought to where you rented a car -- and can be levied against citizens. Both come with a gag. While the targets of both orders cannot be informed of a surveillance request, the Foreign Intelligence Surveillance Court's rules of procedure allow companies to appear in court in an attempt to challenge or modify its orders concerning their customers.

  • If a company doesn't know what to do next when it receives a request that it feels may be unconstitutional, it should call in the cavalry. Overreach by U.S. security agencies and law enforcement may be unconstitutional but will continue and indeed flourish under a veil of legality if never challenged in court. Companies can call organizations like the Electronic Frontier Foundation, the American Civil Liberties Union or the Center for Constitutional Rights and ask them for legal advice.

  • Manage customers' risk by minimizing the information stored. Companies can't hand over data that doesn't exist. Many industries are not required by law to store information about their users. But even specially regulated industries like telecoms can minimize the amount of information they collect and store in the first place -- and thus minimize the information they could be asked to hand over to authorities.

  • And finally, companies can speak out against laws like the PATRIOT Act that might compel them to help the government violate the constitutional rights of their users.

Make sure that companies know their customers want them to help protect the Constitution, especially if our government won't. Click the link below to sign the petition:

CREDO will continue to fight to repeal the PATRIOT Act, end National Security Letter abuse, restore privacy protection to library and bookstore records and otherwise fight to restore our civil liberties. But until Congress steps up, it may be up to corporations to serve as one of our last lines of defense for the constitutional rights of their customers and the public.

Let's make sure those who are in a privileged position to defend the Constitution know they have a special responsibility to do so.

Thank you for speaking out.

Michael Kieschnick, President and CEO
CREDO Action from Working Assets

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