Introduction

In the digital age, where vast amounts of personal data are collected by Big Tech companies, there is an often-overlooked issue: the intersection of technology, government, and secrecy. In both the United States and China, laws either prevent or heavily restrict tech companies from revealing their involvement in government surveillance and intelligence activities. These mandates, which demand compliance and restrict transparency, have far-reaching implications, not only for privacy but for democracy and individual rights worldwide.

This article explores the legislation in the U.S. and China that keeps Big Tech companies bound to government interests, often in secrecy, and examines the potential consequences this relationship poses for global society.

1. Legal Constraints on Big Tech Transparency in the USA

In the United States, several laws bind technology companies to government requests and prohibit them from disclosing such engagements to the public:

• Foreign Intelligence Surveillance Act (FISA)
  • FISA and FISA Amendments Act (FAA) provide a legal framework for government surveillance of foreign entities and individuals suspected of espionage or terrorism, even within U.S. borders. Through FISA courts, the government can request information from tech companies under Section 702, which allows for the targeting of non-U.S. persons outside the country. However, this surveillance can capture data from U.S. citizens incidentally.
  • Gag Orders and National Security Letters (NSLs): Under FISA, companies are often subjected to gag orders, meaning they cannot disclose the nature of the surveillance requests they receive. Additionally, National Security Letters (NSLs) are another tool used by the government to demand information from tech companies without judicial oversight. These letters come with built-in gag orders that prohibit companies from revealing their existence or contents.
  • Example: In 2013, Edward Snowden revealed the PRISM program, an NSA surveillance operation that leveraged data from companies like Google, Facebook, and Microsoft. PRISM used Section 702 of FISA to gather large amounts of data under gag orders, preventing companies from revealing their involvement.
• USA PATRIOT Act and the CLOUD Act
  • USA PATRIOT Act: This legislation, enacted post-9/11, expanded the government’s surveillance authority, allowing law enforcement to access data that could assist in anti-terrorism investigations. Section 215 of the act allows the FBI to collect “any tangible things” for an investigation, including data from tech companies, under broad, often secretive standards.
  • CLOUD Act: Passed in 2018, the CLOUD Act allows U.S. law enforcement agencies to compel tech companies to provide data stored on their servers, even if those servers are located overseas. It also permits international data-sharing agreements, enabling U.S. agencies to request data from companies operating in other jurisdictions, and vice versa. The CLOUD Act’s lack of transparency requirements often leaves users unaware of how their data is being accessed internationally.

Together, these laws impose a significant level of compliance on tech companies, restricting them from revealing to the public the extent of their involvement with government surveillance programs.

2. China’s State Influence on Big Tech

In China, government involvement in technology companies is not only common but legally mandated. Chinese tech giants like Huawei, Tencent, and Alibaba operate under strict legal frameworks that require cooperation with government security efforts:

• National Intelligence Law (2017)
  • Article 7 of China’s National Intelligence Law states that “any organization or citizen shall support, assist, and cooperate with state intelligence work.” This law obligates companies to provide data and assistance to Chinese intelligence agencies when requested. It lacks provisions for transparency, meaning companies cannot disclose the nature or existence of government requests.
  • The National Intelligence Law is often invoked to justify government requests for data from tech companies and to demand cooperation in national security matters. Compliance is mandatory, and refusal could result in severe legal consequences for the companies involved.
• Cybersecurity Law (2017) and Data Security Law (2021)
  • The Cybersecurity Law mandates that critical data collected in China must be stored on Chinese servers, ensuring the government can access it. This law places further compliance requirements on companies, enforcing government control over data flows within China.
  • The Data Security Law expands on these powers by stipulating that the Chinese government has jurisdiction over how data is stored, accessed, and shared, both domestically and internationally. This law includes measures to prevent foreign access to Chinese data but, in effect, reinforces the state’s ability to control and monitor data without public disclosure requirements.

In China, the intertwining of tech and government is an accepted reality, and companies have little recourse to refuse or reveal government requests for data.

3. The Consequences of Government-Restricted Transparency

The legal constraints on tech company transparency in both the United States and China have profound implications, with consequences that reach far beyond each nation’s borders.

• Reduced Privacy and Trust
  • With government laws enforcing secrecy, individuals cannot know the extent of surveillance on their data. Trust in Big Tech erodes when users become aware that companies may be legally bound to comply with government requests they can’t disclose. This eroded trust undermines the foundations of privacy and consent that should govern data collection and sharing.
• Increased Global Surveillance
  • The secrecy laws in both countries contribute to a system of unchecked global surveillance. Through agreements enabled by the CLOUD Act, for example, the U.S. can access data stored abroad, while Chinese intelligence laws require foreign companies operating in China to cooperate with government demands. This creates a global environment where user data is shared across borders without the public’s knowledge or consent.
• Suppression of Dissent and Threat to Democracy
  • When companies cannot reveal the extent of government involvement, it becomes difficult to challenge government overreach or misuse of power. Activists, journalists, and political dissidents are especially vulnerable to secretive surveillance programs, which can stifle freedom of expression. In China, this restriction is part of a broader system to limit dissent, while in the U.S., these laws have been criticized for eroding civil liberties in the name of security.
• Encroachment on Corporate Autonomy
  • Government-mandated secrecy can also compromise corporate autonomy. While companies may wish to protect user privacy, legal mandates prevent them from resisting or even disclosing government requests. This restricts their ability to uphold privacy standards and maintain transparency with users, leading to a growing sense of mistrust between tech companies and their users.

Conclusion: A Call for Global Transparency Standards

As technology companies continue to grow and our reliance on them deepens, the need for transparency has never been greater. The laws in both the United States and China highlight a troubling trend: Big Tech companies are legally bound to comply with government surveillance while being prohibited from revealing their involvement. This secrecy poses real dangers, including eroded privacy, weakened democratic freedoms, and the risk of unchecked global surveillance.

The only way to counter these trends is through the establishment of international transparency standards. Tech companies, governments, and civil society must work together to create safeguards that protect user data from unwarranted surveillance and give individuals visibility into how their data is handled. By prioritizing transparency and ethical responsibility, we can move toward a future where technology serves, rather than undermines, personal autonomy and democratic freedoms.

---

References

1. FISA and National Security Letters (NSLs)
   • «Foreign Intelligence Surveillance Act (FISA),» Electronic Frontier Foundation.
   • «National Security Letters,» Electronic Frontier Foundation.
2. USA PATRIOT Act and CLOUD Act
   • «USA PATRIOT Act,» American Civil Liberties Union.
   • «CLOUD Act and Data Privacy,» Center for Strategic & International Studies.
3. China’s National Intelligence Law
   • «China’s National Intelligence Law: From a Foreign Law Perspective,» Lawfare Blog.
   • «Understanding China’s 2017 Intelligence Law,» Council on Foreign Relations.
4. Cybersecurity Law and Data Security Law in China
   • «China’s Cybersecurity Law,» The Diplomat.
   • «Data Security Law of the People’s Republic of China,» Baker McKenzie.

It’s made by Fausken with love and AI