The constant dribble of information indicating a large-scale, NSA-driven data mining program has sparked intense domestic and international debate. Whatever the actual specifics, the controversy itself threatens to undermine netizens' confidence in the integrity of their online communications and trust in our government. However, as any savvy politician knows, a good crisis is not something that should go to waste.
This crisis is an inflection point and if properly utilized, should serve as an opportunity. The rapid advance in technological capability means that we are overdue for a major public debate on the costs and benefits of new intelligence gathering techniques. Just as our legal system and the courts adapted the Bill of Rights to comport with mass adoption of the telephone, the 4th, 1st and 14th Amendments need to be reexamined and adjusted to comport with the realities of the "big data" age we currently live in.
To do so, Congress must better understand the underlying architecture and politics of the Internet. Much of the world's Internet traffic routes through the United States. This is tied to innovation, economic growth, business and jobs. Lots and lots of jobs. In the hyper-competitive world we live in, defending practices on questionable constitutional grounds based on claims that Americans are somewhat safer does nothing to assure billions of international customers of American Internet companies. More than 50 percent of Facebook and Google's revenue, for example, comes from outside of the U.S.
Currently, a fight over the future of the Internet and its governance, is being waged by diplomats at the International Telecommunications Union in Geneva. This is not your grandparents' national security debate. Our domestic decisions on privacy and national security will have major international political and economic ramifications. The biggest markets for Internet expansion, and thus economic and political advances, are in the developing world.
The Computer & Communications Industry Association has long advocated against the sections of the Foreign Intelligence Surveillance Act, for both substantive and procedural reasons, used to justify the demand for these records. CCIA cautioned about the misuse of these provisions during Senate testimony in 2007.
Honest checks and balances are lacking. This fiasco shows that a clandestine executive program, secret courts, with oversight by lawmakers briefed in secret, cannot provide the adequate checks and balances envisioned by our founders or expected by Americans today. Effective checks and balances must have more transparency. The public must know much more about the existence and scope of the government surveillance they live under so that we can discuss as a nation whether the benefits outweigh the costs.
Some secrecy is necessary, but as the industry that provides Internet services and communications tools, we don't think the scope and frequency of government surveillance should be so cloaked in secrecy.
There are serious and sweeping costs to our nation's diplomatic, economic and trade goals if the millions of people around the world using Internet services to communicate are worried about how information and data about them is being used by the US government.
These negative repercussions must be resolved by legislative, administrative, and officials and private sector players. CCIA is encouraged by some actions of both senators and companies in the past couple weeks.
CCIA supports the effort of Senators Merkley, Lee, and six of their senate colleagues, who have demanded greater transparency by introducing a bill that would require the Department of Justice to declassify a large number of Foreign Intelligence Surveillance Court opinions.
The legislation tries to strike a balance by recognizing some FISA court orders may need to remain secret for national security reasons. In those cases where release would not pose a serious risk, the public could learn about how this law is being applied. It would also help the current problem of not knowing what we don't know: the legislation would require the attorney general to file a report saying how many FISA court orders were published and how many were not.
The government should also modify the gag orders that automatically come with requests to companies for data. While Facebook, Microsoft, Yahoo! and Apple have recently been allowed to release data concerning the volume of government requests for customer information, they are still not permitted to specify the requests by agency, as they requested. For this reason, we expect other companies, such as Google, to decline this latest offer from the government and to continue to press for more transparency.
Modifying these gag orders and enacting transparency legislation will help us all make better judgments on whether these secret programs are unreasonably infringing on our right to free speech and our freedom from unwarranted searches and seizures.
In this country, opinions will inevitably vary regarding what future steps our government should take in its effort to protect American citizens. But we cannot begin to have a truly informed democratic debate on the subject until we know what steps we have already taken. Transparency is crucial to an informed democracy, and we hope Congress can find common ground and pass legislation -- and that the Attorney General lifts the legal gag order to give the American people better details on the scope of the requests that they receive from the government.
Follow Edward J. Black on Twitter: www.twitter.com/ccianet