In an open letter to President Obama and Congress, eight of the most prominent U.S. tech companies have demanded that strict new limits be put on government surveillance, citing revelations made earlier this summer, when stories based Edward Snowden’s leaked documents began running in The Guardian. “The balance in many countries has tipped too far in favor of the state and away from the rights of the individual,” they argue, “rights that are enshrined in our Constitution. This undermines the freedoms we all cherish. It’s time for a change.”
They’ve staked out an extraordinary position.
Google, Facebook, Apple, Microsoft, Twitter, Yahoo, LinkedIn, and AOL all have an interest in restoring public trust in their products and averting new regulatory challenges in countries disinclined to let a spying hegemon control the Internet. My colleague James Fallows has written eloquently about the damage the NSA’s behavior could do to U.S. economic might as other countries react to it. The companies could’ve made a compelling case for reform on those grounds alone.
Instead, they’ve gone quite a bit farther.
Together, they affirm that current surveillance policy—what Team Obama presides over right now—threatens constitutional rights, individuals rights, and freedom. Prominent American companies don’t often make that sort of objection. And their reform agenda is grounded in five principles likely to please most NSA critics:
1) Limiting Governments’ Authority to Collect Users’ Information
Governments should codify sensible limitations on their ability to compel service providers to disclose user data that balance their need for the data in limited circumstances, users’ reasonable privacy interests, and the impact on trust in the Internet. In addition, governments should limit surveillance to specific, known users for lawful purposes, and should not undertake bulk data collection of Internet communications.
2) Oversight and Accountability
Intelligence agencies seeking to collect or compel the production of information should do so under a clear legal framework in which executive powers are subject to strong checks and balances. Reviewing courts should be independent and include an adversarial process, and governments should allow important rulings of law to be made public in a timely manner so that the courts are accountable to an informed citizenry.
3) Transparency About Government Demands
Transparency is essential to a debate over governments’ surveillance powers and the scope of programs that are administered under those powers. Governments should allow companies to publish the number and nature of government demands for user information. In addition, governments should also promptly disclose this data publicly.
4) Respecting the Free Flow of Information
The ability of data to flow or be accessed across borders is essential to a robust 21st century global economy. Governments should permit the transfer of data and should not inhibit access by companies or individuals to lawfully available information that is stored outside of the country. Governments should not require service providers to locate infrastructure within a country’s borders or operate locally.
5) Avoiding Conflicts Among Governments
In order to avoid conflicting laws, there should be a robust, principled, and transparent framework to govern lawful requests for data across jurisdictions, such as improved mutual legal assistance treaty — or “MLAT” — processes. Where the laws of one jurisdiction conflict with the laws of another, it is incumbent upon governments to work together to resolve the conflict.
The way the tech giants have made their gives a significant boost to reform-minded members of Congress, as The Guardian helpfully explains. The “list of five ‘reform principles’ signed by the normally fiercely competitive group echoes measures to rein in the NSA contained in bipartisan legislation proposed by the Democratic chair of the Senate judiciary committee, Patrick Leahy, and the Republican author of the Patriot Act, Rep. Jim Sensenbrenner,” the newspaper reports. “Crucially, Silicon Valley and these key reformers in Congress now agree the NSA should no longer be allowed to indiscriminately gather vast quantities of data from individuals it does not have cause to suspect of terrorism in order to detect patterns or in case it is needed in future.”
If legislators vote on mass surveillance on innocents, the pressure they face from tech companies could prove to be a decisive factor. Stay tuned for what’s next.’