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Fallout from NSA debacle can serve the nation

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December 19, 2013

A National Security Agency data gathering facility is seen in Bluffdale, about 25 miles south of Salt Lake City, Utah. (REUTERS/Jim Urquhart)

A National Security Agency data gathering facility is seen in Bluffdale, about 25 miles south of Salt Lake City, Utah. (REUTERS/Jim Urquhart)

The fallout from the Edward Snowden revelations continues to snowball. With each disclosure, allies, businesses and influential authors call for reform. There is ever growing pressure on the Obama administration to respond and quell these concerns before permanent damage is done.

As the crisis grows, many in Congress and the executive branch now focus on explaining why these programs are critical to countering terrorist threats and securing the country. President Barack Obama’s meeting with technology leaders Tuesday marks an early signal of willingness to engage in open dialogue. But until Washington fully addresses the concerns of these various groups through tangible government reform, the fallout will likely worsen.

Trust has been the principal casualty in this unfortunate affair. The American public, our nation’s allies, leading businesses and Internet users around the world are losing faith in the U.S. government’s role as the leading proponent of a free, open and integrated global Internet.

In discussing how the nation’s privacy and civil rights are being safeguarded, the administration and Congress inadvertently dismiss surveillance concerns. Government officials maintain its programs are legal, critical for national security, effective and managed with strict oversight — and thus should continue.

Yet legality does not confer legitimacy. The current approach to surveillance is widely viewed with skepticism and may even be unconstitutional. While no government will be able to persuade all foreigners that its spying efforts are in the service of good, there are steps Washington can and should take to limit the continuing damage from the Snowden fallout.

Washington must try to rebuild the trust. There are several proposals presented already that would take steps in this direction. The European Commission, for example, outlined six areas of action that it insists would restore trust in data flows between the United States and the European Union — including reforms in data protection and privacy standards. This would establish, or reinforce, agreed-upon rules and programs for government data collection on citizens, legal frameworks to manage the transfer of that data between governments and methods for judicial redress when required. This initiative is crucial because it enforces mutual accountability for all participants.

In addition, leading technology companies have laid out five principles for reform — data collection, oversight, transparency, data flow and government collaboration. Addressing these principles will, the companies say, provide protection from overly intrusive surveillance — and thereby encourage continued use of the businesses’ products and services. These proposals merit attention.

Loss of trust, however, remains the fundamental issue. Washington cannot fix this just by acceding to reforms suggested by others. The administration, with congressional support, must launch a proactive reform agenda, which would demonstrate an understanding of citizens’ concerns — allies and businesses alike.

The components are straightforward: public outreach to concerned constituencies, such as Tuesday’s meeting with technology leaders, amendments to policy and law — for example, updating the Safe Harbor frameworks for privacy protection — and review of the National Security Agency’s oversight mechanisms.

While these procedural steps are clear, the government can do more. The Snowden revelations are about trust as much as technological frontiers — so Washington’s efforts must focus on confidence building.

Security and openness need not be mutually exclusive and technological capability should not be the key to defining operational limits. Confidence can be re-established through government-led development of the explicit principles that set a better balance between security and openness. These principles must be formalized in government agencies’ policies, federal laws, Supreme Court rulings and congressional oversight establishing the government mechanisms to balance security and openness.

Credibly addressing this balance represents Washington’s best chance to rebuild the trust that has been so eroded. It is also an opportunity to recast the Snowden revelations as a reason to establish international norms that will govern all nations that are now developing and using similar surveillance capabilities.

What is required is to establish standards that Washington can hold itself and others to in terms of healthy collaboration with business, productive relationships with allies and appropriate protections for the data of private citizens.

Powerful surveillance capabilities will only grow over time. The United States must therefore establish a new “higher ground” in the international community to lead morally as well as technologically and ensure mutual accountability among governments.

The key is to act quickly. Though the United States needs to retain robust foreign surveillance, it is clear that the fallout from the NSA revelations will continue until proactive steps — rooted in trust, policy and law — are taken.

Ben FitzGerald is director of the Technology and National Security Program at the Center for a New American Security. Robert Butler, who served as the first deputy assistant secretary of defense for cyber policy, is an adjunct senior fellow at the center and chief security officer at IO.
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