Corporations Spy on Nonprofits With Impunity

By Ralph Nader, Reader Supported News

23 August 14

ere’s a dirty little secret you won’t see in the daily papers: corporations conduct espionage against US nonprofit organizations without fear of being brought to justice.

Yes, that means using a great array of spycraft and snoopery, including planned electronic surveillance, wiretapping, information warfare, infiltration, dumpster diving and so much more.

The evidence abounds.

For example, six years ago, based on extensive documentary evidence, James Ridgeway reported in Mother Jones on a major corporate espionage scheme by Dow Chemical focused on Greenpeace and other environmental and food activists.

Greenpeace was running a potent campaign against Dow’s use of chlorine to manufacture paper and plastics. Dow grew worried and eventually desperate.

Ridgeway’s article and subsequent revelations produced jaw-dropping information about how Dow’s private investigators, from the firm Beckett Brown International (BBI), hired:

• An off duty DC police officer who gained access to Greenpeace trash dumpsters at least 55 times;


• a company called NetSafe Inc., staffed by former National Security Agency (NSA) employees expert in computer intrusion and electronic surveillance; and,


• a company called TriWest Investigations, which obtained phone records of Greenpeace employees or contractors. BBI’s notes to its clients contain verbatim quotes that they attribute to specific Greenpeace employees.

Using this information, Greenpeace filed a lawsuit against Dow Chemical, Dow’s PR firms Ketchum and Dezenhall Resources, and others, alleging trespass on Greenpeace’s property, invasion of privacy by intrusion, and theft of confidential documents.

Yesterday, the D.C. Court of Appeals dismissed Greenpeace’s lawsuit. In her decision, Judge Anna Blackburne-Rigsby notes that “However Greenpeace’s factual allegations may be regarded,” its “legal arguments cannot prevail as a matter of law” because “the common law torts alleged by Greenpeace are simply ill-suited as potential remedies.” At this time Greenpeace has not decided whether to appeal.

The Court’s opinion focused on technicalities, like who owned the trash containers in the office building where Greenpeace has its headquarters and whether the claim of intrusion triggers a one year or three year statute of limitations. But, whether or not the Court’s legal analyses hold water, the outcome – no legal remedies for grave abuses – is lamentable.

Greenpeace’s lawsuit “will endure in the historical record to educate the public about the extent to which big business will go to stifle First Amendment protected activities,” wrote lawyer Heidi Boghosian, author of Spying on Democracy. “It is crucially important that organizations and individuals continue to challenge such practices in court while also bringing notice of them to the media and to the public at large.”

This is hardly the only case of corporate espionage against nonprofits. Last year, my colleagues produced a report titled Spooky Business, which documented 27 sets of stories involving corporate espionage against nonprofits, activists and whistleblowers. Most of the stories occurred in the US, but some occurred in the UK, France and Ecuador. None of the US-based cases has resulted in a verdict or settlement or even any meaningful public accountability. In contrast, in France there was a judgment against Electricite de France for spying on Greenpeace, and in the UK there is an ongoing effort regarding News Corp/News of the World and phone hacking.

Spooky Business found that “Many of the world’s largest corporations and their trade associations – including the U.S. Chamber of Commerce, Walmart, Monsanto, Bank of America, Dow Chemical, Kraft, Coca-Cola, Chevron, Burger King, McDonald’s, Shell, BP, BAE, Sasol, Brown & Williamson and E.ON – have been linked to espionage or planned espionage against nonprofit organizations, activists and whistleblowers.”

Three examples:

• In 2011, the U.S. Chamber of Commerce, its law firm Hunton & Williams, and technology and intelligence firms such as Palantir and Berico were exposed in an apparent scheme to conduct espionage against the Chamber’s nonprofit and union critics.


• Burger King was caught conducting espionage against nonprofits and activists trying to help low-wage tomato pickers in Florida.


• The Wall Street Journal reported on Walmart’s surveillance tactics against anti-Walmart groups, including the use of eavesdropping via wireless microphones.

Here’s why you should care.

This is a serious matter of civil liberties.

The citizen’s right to privacy and free speech should not be violated by personal spying merely because a citizen disagrees with the actions or ideas of a giant multinational corporation.

Our democracy can’t function properly if corporations may spy and snoop on nonprofits with impunity. This espionage is a despicable means of degrading the effectiveness of nonprofit watchdogs and activists. Many of the espionage tactics employed appear illegal and are certainly immoral.

Powerful corporations spy on each other as well, sometimes with the help of former NSA and FBI employees.

How much? We’ll never begin to know the extent of corporate espionage without an investigation by Congress and/or the Department of Justice.

While there is a congressional effort to hold the NSA accountable for its privacy invasions, there is no such effort to hold powerful corporations accountable for theirs.

Nearly 50 years ago, when General Motors hired private investigators to spy on me, it was held to account by the U.S. Senate. GM President James Roche was publicly humiliated by having to apologize to me at a Senate hearing chaired by Senator Abraham Ribicoff (D-CT). It was a memorable, but rare act of public shaming on Capitol Hill. GM also paid substantially to settle my suit for compensation in a court of law (Nader v. General Motors Corp., 307 N.Y.S.2d 647).

A public apology and monetary settlement would have been a fair outcome in the Greenpeace case too.

But in the intervening half-century our Congress has been overwhelmed by lethargy and corporate lobbyists. Today, Congress is more lapdog than watchdog.

Think of the Greenpeace case from the perspective of executives at Fortune 500 companies.

They know that Dow Chemical was not punished for its espionage against Greenpeace, nor were other US corporations held to account in similar cases.

In the future, three words may well spring to their minds when contemplating whether to go after nonprofits with espionage: Go for it. Unless the buying public votes with its pocketbook to diminish the sales of these offending companies.

Should Twitter, Facebook and Google Execs Be Our Censors?

By Glenn Greenwald, The Intercept

23 August 14

here have been increasingly vocal calls for Twitter, Facebook and other Silicon Valley corporations to more aggressively police what their users are permitted to see and read. Last month in The Washington Post, for instance, MSNBC host Ronan Farrow demanded that social media companies ban the accounts of “terrorists” who issue “direct calls” for violence.

This week, the announcement by Twitter CEO Dick Costolo that the company would prohibit the posting of the James Foley beheading video and photos from it (and suspend the accounts of anyone who links to the video) met with overwhelming approval. What made that so significant, as The Guardian‘s James Ball noted today, was that “Twitter has promoted its free speech credentials aggressively since the network’s inception.” By contrast, Facebook has long actively regulated what its users are permitted to say and read; at the end of 2013, the company reversed its prior ruling and decided that posting of beheading videos would be allowed, but only if the user did not express support for the act.

Given the savagery of the Foley video, it’s easy in isolation to cheer for its banning on Twitter. But that’s always how censorship functions: it invariably starts with the suppression of viewpoints which are so widely hated that the emotional response they produce drowns out any consideration of the principle being endorsed.

It’s tempting to support criminalization of, say, racist views as long as one focuses on one’s contempt for those views and ignores the serious dangers of vesting the state with the general power to create lists of prohibited ideas. That’s why free speech defenders such as the ACLU so often represent and defend racists and others with heinous views in free speech cases: because that’s where free speech erosions become legitimized in the first instance when endorsed or acquiesced to.

The question posed by Twitter’s announcement is not whether you think it’s a good idea for people to see the Foley video. Instead, the relevant question is whether you want Twitter, Facebook and Google executives exercising vast power over what can be seen and read.

It’s certainly true, as defenders of Twitter have already pointed out, that as a legal matter, private actors – as opposed to governments – always possess and frequently exercise the right to decide which opinions can be aired using their property. Generally speaking, the public/private dichotomy is central to any discussions of the legality or constitutionality of “censorship.”

Under the law, there’s a fundamental difference between a private individual deciding to ban all racists from entering her home and a government imprisoning people for expressing racist thoughts; the former is legitimate while the latter is not. One can, coherently, object on the one hand to all forms of state censorship, while on the other hand defending the right of private newspapers to refuse to publish certain types of Op-Eds, or the right of private blogs to ban certain types of comments, or the right of private individuals to refrain from associating with those who have certain opinions.

The First Amendment bans speech abridgments by the state, not by private actors. There’s plainly nothing illegal about Twitter, Facebook and the like suppressing whatever ideas they choose to censor.

But as a prudential matter, the private/public dichotomy is not as clean when it comes to tech giants that now control previously unthinkable amounts of global communications. There are now close to 300 million active Twitter users in the world – roughly equivalent to the entire U.S. population – and those numbers continue to grow rapidly and dramatically. At the end of 2013, Facebook boasted of 1.23 billion active users: or 1 out of every 7 human beings on the planet. YouTube, owned by Google, recently said that “the number of unique users visiting the video-sharing website every month has reached 1 billion” and “nearly one out of every two people on the Internet visits YouTube.”

These are far more than just ordinary private companies from whose services you can easily abstain if you dislike their policies. Their sheer vastness makes it extremely difficult, if not impossible, to avoid them, particularly for certain work. They wield power over what we know, read and see far greater than anything previously possible – or conceivable – for ordinary companies. As The Guardian‘s Ball aptly noted today in expressing concern over Twitter’s censorship announcement:

Twitter, Facebook and Google have an astonishing, alarming degree of control over what information we can see or share, whether we’re a media outlet or a regular user. We have handed them a huge degree of trust, which must be earned and re-earned on a regular basis.

It’s an imperfect analogy, but, given this extraordinary control over the means of global communication, Silicon Valley giants at this point are more akin to public utilities such as telephone companies than they are ordinary private companies when it comes to the dangers of suppressing ideas, groups and opinions. It’s not hard to understand the dangers of allowing, say, AT&T or Verizon to decree that its phone lines may not be used by certain groups or to transmit certain ideas, and the dangers of allowing tech companies to do so are similar.

In the digital age, we are nearing the point where an idea banished by Twitter, Facebook and Google all but vanishes from public discourse entirely, and that is only going to become more true as those companies grow even further. Whatever else is true, the implications of having those companies make lists of permitted and prohibited ideas are far more significant than when ordinary private companies do the same thing.

Another vital distinction is between platform and publisher. As Ball explained, companies such as Twitter have long insisted they are the former and not the latter, which means they are not responsible for what others publish on their platform (just as AT&T is not responsible for how people use its telephones). Demanding that Twitter actively intervene in what speech is and is not permissible blurs those lines, if not outright converts them into a publisher. That necessarily vests the company with far greater responsibility for determining which ideas can and cannot be aired.

If, despite these dangers, you are someone who wants Dick Costolo, Mark Zuckerberg, Eric Schmidt and the like to make lists of prohibited ideas and groups, then you really need to articulate what principles should apply. If, for instance, you want “terrorist groups” to be banned, then how is that determination made? There is intense debate all over the world about what “terrorism” means and who qualifies. Should they use the formal lists from the U.S. Government, thus empowering American officials to determine who can and cannot use social media? Should they use someone else’s lists, or make their own judgments?

If you want these companies to suppress calls for violence, as Ronan Farrow advocated, does that apply to all calls for violence, or only certain kinds? Should MSNBC personalities be allowed to use Twitter to advocate U.S. drone-bombing in Yemen and Somalia and justify the killing of innocent teenagers, or use Facebook to call on their government to initiate wars of aggression? How about Israelis who use Facebook to demand “vengeance” for the killing of 3 Israeli teenagers, spewing anti-Arab bigotry as they do it: should that be suppressed under this “no calls for violence” standard?

A Fox News host this week opined that all Muslims are like ISIS and can only be dealt with through “a bullet to the head”: should she, or anyone linking to her endorsement of violence (arguably genocide), be banned from Twitter and Facebook? How about Bob Beckel’s call on Fox that Julian Assange be “assassinated”: would that be allowed under Ronan Farrow’s no-calls-for-violence standard? I had a long dialogue with Farrow on Twitter about his op-ed but was not really able to get answers to questions like these.

None of this is theoretical. It’s the inevitable wall people run into when cheering for the suppression of speech they find “harmful.” Indeed, even as they were applauded, Twitter refused to follow their edict through to its logical conclusion when they announced they would not ban the account of the New York Post even though that tabloid featured a graphic photo of the Foley beheading on its front page, which it promoted from Twitter. The only rationale for refusing to do so is that banning the account of a newspaper because Twitter executives dislike its front page powerfully underscores how dangerous their newly announced policy is.

There are cogent reasons for opposing the spread of the Foley beheading video, but there also are all sorts of valid reasons for wanting others to see it, including a desire to highlight the brutality of this group. It’s very similar to the debate over whether newspapers should show photos of corpses from wars and other attacks: is it gratuitously graphic and disrespectful to the dead, or newsworthy and important in showing people the visceral horrors of war?

Whatever one’s views are on all of these questions, do you really want Silicon Valley executives – driven by profit motive, drawn from narrow socioeconomic and national backgrounds, shaped by homogeneous ideological views, devoted to nationalistic agendas, and collaborative with and dependent on the U.S. government in all sorts of ways – making these decisions? Perhaps you don’t want the ISIS video circulating, and that leads you to support yesterday’s decision by Twitter. But it’s quite likely you’ll object to the next decision about what should be banned, or the one after that, which is why the much more relevant question is whether you really want these companies’ managers to be making such consequential decisions about what billions of people around the world can — and cannot – see, hear, read, watch and learn.