Questions about Mass Surveillance
Last week, Senator Ron Wyden of Oregon, long-time member of the Select Committee on Intelligence and current chairman of the Senate Finance Committee, held a roundtable on the impact of governmental surveillance on the U.S. digital economy. (You can watch a video of the entire roundtable discussion here.) While he made the case that the current surveillance practices have hampered both our security and our economy, the event focused primarily on the implications of mass surveillance for U.S. business—corporations, entrepreneurs, tech employees, etc. Speaking at a high-school in the heart of Silicon Valley, surrounded by the Executive Chairman of Google, the General Counsels of Microsoft and Facebook, and others, Wyden argued that the current policies around surveillance were harming one of the most promising sectors of the U.S. economy—and that Congress was largely ignoring that issue. “When the actions of a foreign government threaten red-white-and-blue jobs, Washington [usually] gets up at arms,” Wyden noted, but “no one in Washington is talking about how overly broad surveillance is hurting the US economy.”
The focus on the economic impact was clearly intended to present the issue of mass surveillance through a new lens—one that might engage those lawmakers and citizens who had not been moved, perhaps, by civil liberties arguments. However, even in this context, the discussion frequently turned to the “personal” implications of the policies involved. And in comments both during and after the panel discussion, Wyden expressed his deep concern about the particular danger posed by the creation and implementation of “secret law.” Microsoft’s General Counsel, Brad Smith, went one step further: “We need to recognize,” he said, “that laws that the rest of the world does not respect will ultimately undermine the fundamental ability of our own legal processes, law enforcement agencies, and even the intelligence community itself.”
That brought me back to some of the questions I raised in 2013 (a few months after the Snowden revelations first became public), in an article published by the Santa Clara Magazine. One of the things I had asked was whether the newly-revealed surveillance programs might “change the perception of the United States to the point where they hamper, more than they help, our national security. “ In regard to secret laws, even if those were to be subject to effective Congressional and court oversight, I wondered, "[i]s there a level of transparency that U.S. citizens need from each branch of the government even if those branches are transparent to one another? In a democracy, can the system of checks and balances function with informed representatives but without an informed public? Would such an environment undermine voters’ ability to choose [whom to vote for]?"
And, even more broadly, in regard to the dangers inherent in indiscriminate mass surveillance, "[i]n a society in which the government collects the metadata (and possibly much of the content) of every person’s communications for future analysis, will people still speak, read, research, and act freely? Do we have examples of countries in which mass surveillance coexisted with democratic governance?"
We know that a certain level of mass surveillance and democratic governance did coexist for a time, very uneasily, in our own past, during the Hoover era at the FBI—and the revelations of the realities of that coexistence led to the Church committee and to policy changes.
Will the focus on the economic impact of current mass governmental surveillance lead to new changes in our surveillance laws? Perhaps. But it was Facebook’s general counsel who had (to my mind) the best line of last week’s roundtable event. When a high-school student in the audience asked the panel how digital surveillance affects young people like him, who want to build new technology companies or join growing ones, one panelist advised him to just worry about creating great products, and to let people like the GCs worry about the broader issues. Another panelist told him that he should care about this issue because of the impact that data localization efforts would have on future entrepreneurs’ ability to create great companies. Then, Facebook’s Colin Stretch answered. “I would say care about it for the reasons you learned in your Civics class,” he said, “not necessarily the reasons you learned in your computer science class.”
Illustration by Stuart Bradford