Earlier this week, the Information Technology and Innovation Foundation hosted a forum on the impact of the PRISM program on digital trade policy. This particular event did not deal with the merits of PRISM but rather its secondary effects on the efforts of American negotiators and companies to convince other countries not to discriminate against U.S. providers of advanced technology services. Those efforts have been severely damaged by the sudden awareness by both foreign users and their governments that use of U.S. companies gives the U.S. government access to the resulting data. Furthermore, because the users are not American citizens, Constitutional protections do not apply.
While foreign governments may overlook such dangers in exchange of their own access, their citizens may be less forgiving. Public resistance to American providers could cost U.S. companies billions of dollars. The best way to ensure that American companies compete on an equal ground is to have an open and honest debate about 1) what data can be collected, 2) who, including the government, can have access to it and for what purposes and 3) what controls will exist to make sure that the data are not misused and how those controls will be enforced.
The problem is that it is impossible to have that discussion when the U.S. government takes the position that 1) the public has no right to learn of these programs and should not have learned of them, 2) the national security agencies have the right to actively mislead Congress and perhaps the FISA courts in order to protect their interpretation of national security, and 3) although this is less certain, the current Administration seems to take the position that even if U.S. statutes clearly prohibited the gathering and use of certain information, the President has the inherent power secretly to override those limitations in the interests of national security.
We have long since past the point where the self-imposed costs of limitations on American freedom outweigh any likely threat that our enemies could inflict. A similar overreaction has followed every other military threat in our history. This one is driven not by Americans who are afraid, but by politicians who like power and security firms that like business. It is about time we grew out of it.
The ironic thing is that an honest debate might produce a program very much like the one we have, except more open. Government officials would probably face a few more limits on what they could collect, how long they could keep it, and what they could do with it. More searches would require prior judicial approval. Most importantly, there would be public safeguards to ensure that the agencies respected the law. But again, how can we ever reach such an agreement as long as the Administration takes the position that security interests trump the law? And until we do, why would you ever believe that U.S. companies are not being forced to give the government access to your information?
Law, Economics, and Technology 