For the last several years U.S. government officials have fought back against these efforts, arguing that the USA PATRIOT Act did not grant the federal government carte blanche to access electronic data. But their ability to make this case going forward has been severely compromised by revelations about the size and scope of the NSA’s surveillance efforts. The existence of widespread government electronic monitoring now legitimizes these barriers to digital trade: as long as the United States maintains its current policies on electronic surveillance, any country that wants to give preference to its domestic providers can simply say it opposes PRISM and effectively shut down the debate.
To remedy this, the administration and Congress should take two immediate steps. First, the government should declassify aspects of the programs that have been already been revealed or partially revealed and halt their implementation. Even if you endorse the view that PRISM and related surveillance programs are necessary in the fight against terrorism, these programs will be ultimately ineffective if their presence dissuades businesses and consumers from using the services of U.S. companies. Policy choices are always about trade-offs, and it is hard to see how the benefits of keeping this program classified outweigh the economic costs of its continued secrecy. Moreover, the classified nature of the program has resulted in national security interests trumping economics interests in the decision-making process. A more open and democratic debate might have had different outcomes, and it is long overdue for the American public to be included in that discussion. With that in mind, Congress should hold hearings on the impact of PRISM on U.S. competitiveness, particularly for trade in digital goods and services.
Second, the administration and Congress should make firm commitments to transparency. Specifically, Congress should pass legislation requiring companies to disclose on a regular basis the details about government requests for user information, including the number of individuals affected and the type of authority used for each request. In addition, the Administration should work with international partners to secure transparency as a key component of future trade agreements so that companies are able to disclose the extent and nature of mandatory surveillance by foreign governments.
Taking these steps will help ensure that national security interests are balanced against economic interests, and that U.S. businesses engaged in digital trade are able to effectively compete globally. Failure to act will make it more likely that the next Twitter or Facebook will not be an American company.
Castro is a senior policy analyst with the Information Technology and Innovation Foundation.