US Technology Companies and State Surveillance in the Post-Snowden Context: Between Cooperation and Resistance Félix Tréguer To cite this version: Félix Tréguer. US Technology Companies and State Surveillance in the Post-Snowden Context: Be- tween Cooperation and Resistance. [Research Report] CERI. 2018. halshs-01865140 HAL Id: halshs-01865140 https://halshs.archives-ouvertes.fr/halshs-01865140 Submitted on 30 Aug 2018 HAL is a multi-disciplinary open access L’archive ouverte pluridisciplinaire HAL, est archive for the deposit and dissemination of sci- destinée au dépôt et à la diffusion de documents entific research documents, whether they are pub- scientifiques de niveau recherche, publiés ou non, lished or not. The documents may come from émanant des établissements d’enseignement et de teaching and research institutions in France or recherche français ou étrangers, des laboratoires abroad, or from public or private research centers. publics ou privés. Distributed under a Creative Commons Attribution| 4.0 International License UTIC Deliverable 5 US Technology Companies and State Surveillance in the Post-Snowden Context: Between Cooperation and Resistance Author: Félix Tréguer (CERI-SciencesPo) 1 tech Executive Summary This deliverable looks at the growing hybridization between public and private actors in the field of communications surveillance for national security purposes. Focusing on US-based multinationals dominating the digital economy globally which became embroiled in the post-Snowden debates (companies like Google, Apple, Facebook, Microsoft, Yahoo), the report aims at understanding the impact of the Snowden scandal on the strategies of these companies in relation to state Internet surveillance. To that end, the report identifies seven factors that are likely to influence the stance of a given company and its evolution depending on the changing context and constraints that it faces across time and space. These factors are: the firm’s internal corporate culture, the pressure coming from the human rights field, the importance of user trust on these companies' businesses, their sensitivity to regulatory changes, the identification of the firm managers to the power elite, the firm's dependence on public procurements and, finally, the existence of criminal sanctions for non- cooperation. The report then applies this constraint structure affecting the participation of large Internet firms in public-private surveillance assemblages through two case-studies looking at post-Snowden debates in the United States and in France. We observe important differences depending on the considered country in the initial phase of the scandal (2013-2015). In the US, we first see overt and multi- pronged resistance strategies being staged, which can be read as an instance of double-dealing (in the sense that commitments to human rights actually reinforced the position of these firms in their respective markets). In France these companies faced a much more antagonist environment, partly resulting from existing public-private alliances, and their initial attempt at resistance to the expansion of state surveillance capacities was immediately denounced by government officials as hypocritical, considering their own commercial surveillance practices. This subsequently led to much less intense and much more discreet forms of resistance. But overtime, from 2015 on, the influence of the human rights field withered along with the media attention devoted to state surveillance. Through securitization discourses, the agenda became dominated by terrorist threats and similar trends towards greater cooperation materialised on both sides of the Atlantic – especially regarding the issue of the monitoring and takedown of terrorism- related content on online platforms –, suggesting strong transnational field effects. As a consequence, while we note variations depending on the companies and the two countries under consideration, the public-private stand-offs eventually resulted in coherent mechanisms producing similar outcomes. In concluding the deliverable, we build on these case studies to argue that such ongoing public- private hybridization processes need to be framed in the context of wider shifts affecting modern bureaucracies – with the growing importance of data governance for modern state power –, and point to the adverse impact of these trends on the rule of law. 2 tech Table of Contents Executive Summary.............................................................................................................2 1. Introduction......................................................................................................................4 1.1 Goal of the deliverable...................................................................................................7 1.2 Brief literature review.....................................................................................................7 1.3 Methodology of this report...........................................................................................10 1.4 Research Questions & Outline.....................................................................................11 2. Hypothesis on the Constraint Structure of Large Internet Firms in Debates on State Surveillance................................................................................................................13 2.1 Internal corporate culture.............................................................................................13 2.2 Pressure from human rights field.................................................................................14 2.3 User trust and business stakes....................................................................................15 2.4 Regulatory stakes........................................................................................................17 2.5 Identification to and dependency on power elite.........................................................17 2.6 Firm’s dependence on public procurements................................................................18 2.7 Criminal sanctions........................................................................................................19 3. (Re)configuration of Public-Private Assemblages in Internet Surveillance: Case- Studies..................................................................................................................................22 3.1 US: “Big Tech” stages resistance.................................................................................22 3.2 France: Facing established public-private alliances....................................................46 4. Conclusion: Changing Bureaucracies, Security & the Rule of Law.........................61 References..........................................................................................................................65 Appendix 1: Roundtable “The Internet, Private Actors and Security Challenges” (CERI, October 9th, 2017).....................................................................................................71 Programme........................................................................................................................71 Draft transcription by Barthélémy Michalon.......................................................................72 3 tech 1. Introduction In June 1831, a Frenchman under the name of Alexandre Ferrier sought to create the first privately- held optical telegraph ling between Calais, in Northern France, and London. Ferrier was an adventurous entrepreneur who did not back away from bold ideas. After all, such a privately-owned telecommunications infrastructure could not only serve the interest of French industry barons willing to track stock prices in the world financial capital, but also to the French government who could use it for its diplomatic communications. Moreover, there was no law sanctioning the de facto monopoly of the French state over telegraph networks. Ferrier was bold, but he also knew that he would be more cautious to ask the government for an explicit authorization. In turn, Casimir Périer, head of the government, wanted an informed opinion on the matter. Yes, Ferrier's proposal was unusual but, after all, many political and business elites agreed that the telegraph could be a boon for the emerging industrial revolution (Flichy, 1991). Could the the government seriously consider keeping its monopoly over the telegraph? Many thought not. Privatizing the telegraph? But Alphonse Roy, the man Périer turned to in order to make up his mind, had an entirely different view on the matter. As the newly-appointed Director of the Telegraph Service at the Ministry of Interior, Foy wrote a letter that offered a more-than-tepid response to Ferrier's project. “Mr. Ferrier's request is entirely inadmissible,” he wrote. And so no one could be mistaken, he added: “The claim that a telegraph line owned by individuals could be established across the strait to extend the line of the State that ends in Calais, and that it could be of any service to the government, is something completely illusory.” Why? First of all, as Foy explained, “the Administration would never entrust diplomatic secrets to agents who are not responsible to her (…).” But the argument seemed specious. For one thing, every diplomatic cable was encrypted in Chappe code and, according to historian Paul Charbon, was “completely unintelligible for those in charge of transmitting it” (Charbon, 1991). More crucially,