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The Americans Are Ready to Reform Surveillance Laws, So Why Aren't We?

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Today, the president of the United States will respond to a review panel's critical assessment of the current legal and operational framework that governs surveillance of Americans and non-Americans alike.

This panel included a former Bush-appointed White House counter-terrorism advisor who was in post on 9/11 and a former deputy director of the CIA. Its 46 recommendations, covering everything from ending bulk data collection by governments, strengthening the intelligence oversight court and prohibiting actions to weaken internet security, carry greater weight given how the review panel was made up. There was initial scepticism when the membership was announced, yet what is striking is that both pro-NSA and pro-reform lobbies have welcomed its findings. This is a telling sign of the strength of its analysis and evidence base.

The review itself should be a wake-up call to those who say reform is not needed in Britain. This week, the chairman of the UK's Intelligence and Security Committee, Sir Malcolm Rifkind, suggested that president Obama's review of the NSA has proposed "precisely the system that exists in the United Kingdom today."

However, to take one example, on page 86 the review proposes a system where a judge authorises access to phone metadata (communications data) on particular individuals and only in cases involving terrorism or clandestine intelligence systems. Such warranty and independent oversight is wholly lacking from the UK system, where orders for data are approved by the same organisations requesting it. Data can be accessed for a range of purposes far beyond terrorism. To describe this system as "precisely" the same as what has been proposed in the US is wholly wrong.

In fact, even before the proposed reforms in the US, the American system was incomparably more open and accountable than our own. Once the proposed reforms are put in place, and I am in no doubt that they will be, the gap in both effectiveness and accountability is set to grow even wider.

What can be concluded from the US debate is that the majority of American people and political classes believe that without proper oversight and public debate the agencies lose focus, trespass unnecessarily on the public's rights and freedoms and become materially less effective. It is hoped that ministers and the security agencies in Britain will start to view transparency in the same way.

The Snowden revelations have indicated that the security services have engaged in legally dubious gathering and monitoring of our communications data. We know that they, along with some ministers, want the legal power to do this on an even larger scale. David Davis MP recently requested his mobile phone provider to give him all the data they held on him for a single year. What they gave him could fill a shelf and highlighted serious implications for our privacy that access to metadata can have.

In the weeks following the president's speech, the European Parliament's LIBE Committee will issue its own report on the matter. It appears likely that they will recommend the suspension of the Safe Harbour Treaty, the streamlined process that enables US companies to comply with EU data protection directives. If this does happen, it will have serious implications for both British and American businesses.

Last year, anger trembled within Silicon Valley as stories emerged of the undermining of the security of their products, specifically the breaking into of Google's servers by GCHQ and the NSA. Quite rightly, the high tech companies decided to defend their industry. In response, Google's chief legal officer, David Drummond, said:

The company has long been concerned about the possibility of this kind of snooping. We are outraged at the lengths to which the government seems to have gone to intercept data from our private fibre networks, and it underscores the need for urgent reform.

Technology companies have revolutionised the global economy by creating an interconnected, high speed marketplace, placing gravitas on accountability, transparency and privacy. It is these simple principles that led to the boom in the technology sector, and without them it would quite simply lead to bust. This erosion of trust would be highly detrimental to the industry, with estimated total losses of $35billion.

Distrust is on the rise. Companies are already establishing themselves in countries that have strong privacy protections, such as Germany, to take advantage of the loss of credibility of the US based companies. The internet makes up around 12% of Britain's economy, meaning if the move towards accountability doesn't catch on we may see fewer IT based companies establishing here - a clear kick in the teeth to initiatives like Tech City.

This debate in Britain may be in its infancy, with secrecy a well-worn habit when it comes to our security agencies, but one thing is clear - if we do not, as the US and other countries now accept is essential, bring our legal framework and oversight mechanisms in line with the expansive surveillance made possible by modern technology, our economy our privacy and our security will all suffer.

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