11/19/2013 11:37 am ET Updated Jan 23, 2014

A Global Agreement on Privacy, Intelligence and National Security

The United States was founded on the notion of protecting the rights of the individual, including the right of privacy from government intrusion.

There is always a balance to be struck in gathering intelligence for national security and protecting the privacy of individuals. Until September 11, 2001, there was a general separation of investigative authorities in the U.S. -- with a bright line separating criminal from intelligence investigations. After that date, it became clear that this framework impaired the government's ability to protect its citizens. New rules were written, predominantly under the USA Patriot Act, and other countries followed suit, some with even more intrusive laws than the U.S.

I was involved, having worked on the Patriot Act in the U.S. Senate. Some (too few) of us, were trying to insert stronger privacy protections and greater oversight in the reworked framework. But only weeks after the most deadly attack on U.S. soil ever, there was little appetite for such considerations.

Twelve years later we are learning that, as we feared in 2001, in the secrecy of it all, the intelligence community may have gotten the balance between national security and privacy wrong. If the reports are correct, law enforcement and intelligence have stretched and possibly exceeded their authority -- to gather stunning volumes of personal data only imaginable in 2001; to tap into literally the very fiber of global communications, possibly even the private networks of companies such as Google and Yahoo!.

However, because these government programs are highly secret, there hasn't been the opportunity for sufficient oversight, nor meaningful public debate as to the balance between protecting national security and preserving privacy. Lawsuits seeking to address this balance have been stymied by the secrecy of the laws and programs. Indeed, even members of Congress and the U.S. Senate have been hamstrung in pursuing oversight.

It's time that intelligence laws and practices be reformed to ensure that privacy is protected, the rights of individuals are preserved and adequate oversight is in place.

In the U.S., Congress should undertake an open debate on the merits and practices of current intelligence gathering programs with the goal to enact laws to restore the balance between national security and the protection an individuals' rights, including the right to privacy.

The time has come, too, in this post-9/11 era, for the United States and its allies together to undertake an examination of modern intelligence practices throughout the world and develop an Agreement on Digital Espionage, the ground rules for intelligence - for the Information Age.

There is precedent for these recommendations.

In the United States in 1975, following the Watergate scandal, the U.S. Senate established the temporary United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, under the leadership of Senator Frank Church. The Church Committee investigated the intelligence gathering practices of Central Intelligence Agency (CIA), National Security Agency (NSA) and Federal Bureau of Investigation (FBI) as they potentially related to domestic and foreign intelligence gathering. The conclusions of that Committee exposed far more egregious activities than are at issue today, but the precedent was set for imposing limits and establishing strong oversight within the U.S. government for U.S. intelligence activities.

In 1946, after World War II and at the beginning of the Cold War, the U.S. and the UK entered an understanding to share "signal intelligence." That understanding, the UKUSA Alliance, subsequently expanded to what came to be known as "Five Eyes" with the cooperation of Australia, Canada and New Zealand. This long time secret agreement became public in 2010.

Living in Asia, and working to encourage the adoption of new technologies such as cloud computing, I see the anxiety about what it appears the U.S. is doing. As individuals in the U.S. are concerned about their privacy, so are individuals, businesses and governments around the globe.

No longer can the U.S. or others in the West claim the moral high ground. So now that this is established, let's have the conversation that is long overdue. The U.S. and the West can regain leadership, but it must take the first steps to strike the right balance, and through a cooperative process.

And there is more to gain by looking deeper into digital espionage. How governments use their capabilities to intercept, or worse, interrupt data, has riskier implications. As governments around the globe gain new capabilities, it is unclear which uses are tolerable, and which are not. With advances in technology come increased risk of a devastating blow, to a business' operations, or potentially more tragically, to critical infrastructure. These are real threats to national security, and America and its allies gain from an agreement that provides clarity to avert a Digital Cold War stand-off, or worse. We are at the juncture where it is critical we divine the line between acceptable and unacceptable government activities in the digital realm; drawing the line that defines the digital engagement that constitutes an act of war.

Indeed, Asia may be the best venue for a serious dialog on these issues. Convening this negotiation in Asia would acknowledge these aren't only issues for the U.S. and Europe to deal with and would bring Asian countries into the discussion in a potentially powerful way.

The world's governments have long looked to the U.S. for leadership -- for precedence and regulatory frameworks -- in developing their own approaches to issues of governance. The U.S. has an opportunity again to advance intelligence and national security, incorporating into a reformed framework respect for individual's rights, transparency under the rule of law, public awareness and meaningful oversight; at the same time protecting citizens from new threats.

Since 2001, governments around the world, faced with daunting intelligence challenges, have done a remarkable job at protecting national security and averting terrorist acts.

Twelve years later, it's time to adjust the balance between national security and protecting the rights we are so vigilantly protecting. Along the way, we can ensure that we thoughtfully strengthen national security.

Stacy Baird served as Senior Staff to members of the U.S. Senate and House of Representatives from 1998-2005. He resides in Hong Kong and is Chair, Data Sovereignty, Asia Cloud Computing Association. The views expressed are entirely his own.