Can protecting customers be treasonous?
One might think it is a silly question. Treason, after all, is plotting to overthrow the government, or at least helping a foreign government defeat our state. It is such a high crime, it doesn't lead to charges often – and some, like John Brown, actually had pretty good reasons for attempting it.
But it appears that treason is the very charge threatened against U.S. technology companies if they meddle in the federal government's attempt to collect private data on millions of Americans.
Marissa Mayer, chief executive of Yahoo, was asked during the Techcrunch Disrupt conference in San Francisco why she didn't inform Americans that the federal government was seeking data. Her answer, as reported by The Guardian, was chilling: "Releasing classified information is treason and you are incarcerated," she said.
Mayer is certainly no Tokyo Rose nor an executive prone to hyperbole. Yet she used the word treason. Those who commit treason are traitors. The thought that any entrepreneurial enterprise could be traitorous seems far-fetched, but it is precisely the dilemma faced by business leaders that stand in the way of the government's demands.
That ups both the rhetoric and the ante. In truth, some damage has already been done. Two prominent email services shut down amid the government's scrutiny, rather than fight.
But larger tech companies are reaching into their deeper pockets to try to do the right thing. Yahoo, Facebook, Google and Microsoft have all taken to the courts to try to get the government to provide more details about the information grab, or at least allow companies to be more expansive in what they can tell their customers and shareholders. Google has even asked for a public hearing on the matter.
Perhaps that is the line in the sand needed to put limits on government surveillance of Americans.
Or maybe it needs to go even a step further.
If Mayer and tech giants fail in court, they don't have to roll over. They could call the government's bluff, wagering that, in an era of malleable red lines, prosecutors would never round up the usual suspects in Silicon Valley and throw them in prison. Yes, resistance would put government contracts at risk, and, worse, invite the opportunity for prosecutors to use their weight to shut down the companies altogether.
But the market – the very customers Mayer and others are hoping to protect – are the best jury to find corporations innocent of the high crime of treason. Just imagine the outcry if the National Security Agency suddenly took away your Facebook. It won't happen.
At stake, after all, is not the right to privacy, but rather the protection afforded by transparency. Many Americans likely don't mind that the government collects data on them, since there is a trade off between privacy and security. What companies want is just the right to let you know who wants information about you, and why.
That impulse is far from treasonous. It is arguably a crime to not push back and protect customer data, no matter what threats come your way.