Government Access to User Data: Towards More Meaningful Transparency Reports

The exercise of secret surveillance powers by the state, both via law enforcement authorities and by security and intelligence agencies, has been traditionally accepted as part of state powers to ensure national security and public order. However, the way these secret surveillance powers are exercised has changed in recent years. The Internet revolutionized citizens’ everyday life, but also significantly affected the ways in which states use their powers. The collection of great amounts of information in the hands of private companies has turned them into lucrative sources for the state to gain access to information about individuals and, in this way, exercise secret surveillance on them. The Snowden disclosures in 2013 revealed that the US and UK intelligence agencies (NSA and GCHQ) were secretly collecting massive amounts of data about citizens through data requests to Internet companies (Google, Facebook, Microsoft, Yahoo!, Apple, etc.). This led to public outcry against the Internet companies that were associated with the surveillance programs. The practices of mass state access to user data held by private companies and the loss of citizen control over their data collected by such companies create a new status quo in consumer-business relationships, whereby one of the biggest concerns is lack of transparency over the state’s access to individuals’ data through private enterprises. In this new reality, businesses are trying to reposition themselves in the triangle of citizens, industry and the state. One of the ways of doing so is through the publication of so-called ‘transparency reports’, in which companies provide information about the scale of government requests for user data and some insights into the numbers of instances, where data was disclosed, as well as information about content removals due to copyright infringements.