Editorial Board

Silicon Valley Joins the Surveillance State

“Nobody is listening to your telephone calls,” President Barack Obama said today. Honestly, we didn’t think anyone was. If he intended to be reassuring, his words had the opposite effect. The president’s remarks in defense of the government’s vast electronic surveillance programs help explain why U.S. citizens -- and, not incidentally, U.S. businesses -- should be so unnerved by them.

The first point is that we don’t necessarily know what is happening. According to the Washington Post and the Guardian newspaper, the National Security Agency and the Federal Bureau of Investigation are sifting through vast amounts of data -- including audio, video, e-mail, photographs, documents and much else -- produced by nine U.S. technology companies. The program, code-named Prism, allegedly spied on content being shared by foreign users.

Such programs -- in addition to Prism there is the vast effort, also revealed this week, to collect phone data from Verizon Communications Inc. customers -- naturally raise questions about the proper balance between privacy and security. “When you actually look at the details, then I think we’ve struck the right balance,” the president said today. OK, fine: So how about some details?

Congress -- where fear of being labeled weak on terrorism affords the security-industrial complex a supine majority -- must rediscover its national-security prerogatives. It shouldn’t be too hard. The 2011 vote to extend provisions of the Patriot Act produced 153 nays in the House and 23 in the Senate. That’s a skeptical base on which to build effective oversight.

Senators Ron Wyden of Oregon and Mark Udall of Colorado, both Democrats, offered an amendment to the 2011 reauthorization that would have compelled the attorney general to “publicly disclose the United States Government’s official interpretation of the USA Patriot Act.”

Understanding how the government interprets the law is prerequisite for this debate. Let’s get that on the record, then see where the discussion leads.

At the very least the public debate should be routed through the intelligence committees in the House and Senate. It is no longer enough for them to give vague blessings to government spying. They should issue annual, unclassified reports certifying that they have reviewed secret government programs and they endorse their basis in law and their validity on national-security grounds. The reports should include minority dissents. The public needn’t see secrets; we do need to know more about how Congress is scrutinizing the process.

Aside from concerns about privacy and government power, Prism is also cause for economic anxiety. The companies reportedly compliant with the NSA’s snooping look like a Who’s Who of 21st-century American innovation: Apple Inc., Yahoo! Inc., Google Inc., Microsoft Corp. and Facebook Inc. all joined the party.

The companies involved have been offering carefully worded denials, but even hints of acquiescence in this program should be cause for deep worry from a business perspective. Foreign governments, already inclined to protect homegrown technology businesses, might find such surveillance a convenient excuse to increase regulatory or antitrust pressure on Silicon Valley hegemons. More legitimately, they might also want to protect their citizens and businesses from foreign espionage.

And they’d be right to: Spying on foreign citizens is the explicit justification offered for this program by U.S. Director of National Intelligence James Clapper. If these companies are soon subjected to far more onerous privacy provisions in foreign countries, they shouldn’t be surprised in the least. There’s some indication the program may have violated European Union privacy rules.

International users of such services might be at ease with sharing their photos and videos with family and friends. Sharing them with Uncle Sam, however, is a different matter entirely. That’s not to say that these revelations alone will lead to a global revolt against Facebook. But combined with Facebook’s penchant for violating user privacy, some people may start looking at competing services that do a better job of protecting their data -- and that aren’t known to be bugged by the U.S. intelligence community.

It may not be realistic to have expected these companies to decline the government’s invitation to help it spy (although Apple appears to have resisted for several years). But they had to have known the potential for controversy.

In a 2009 debate on Patriot Act provisions, Democratic Senator Dick Durbin of Illinois predicted the program would run into trouble. “Someday the cloak will be lifted, and future generations will ask whether our actions today meet the test of a democratic society -- transparency, accountability and fidelity to the rule of law and our Constitution,” he said.

Durbin was prescient, but his timing was off. His questions aren’t for future generations -- they’re for us.

    To contact the senior editor responsible for Bloomberg View’s editorials: David Shipley at davidshipley@bloomberg.net .

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