THE BLOG

Merkel's EU Data Network Is No Substitute for Surveillance Law Reform

17/02/2014 17:10 GMT | Updated 19/04/2014 10:59 BST

Surveillance reform isn't just about privacy. The free flow of information is as much an economic issue as a social one.

Angela Merkel's call yesterday for a European network "so that one shouldn't have to send emails and other information across the Atlantic" is hardly surprising given the revelations of how German and other European citizens have had their data indiscriminately collected as they use web services based overseas. She may well get her way if surveillance reforms are not forthcoming, and that should concern us all.

The proposal goes to the heart of what sort of internet we all want - and a fragmented web of different blocs is not necessarily the solution to recent revelations.

In recent years, far from media coverage and public debate in Britain, meetings have been taking place about how to govern the web. Until now the 'multi-stakeholder' approach, a mix of Governments, civil society, academics, companies and others, work together to address pressing issues, with no one group having the ability to override the others.

China, Russia and Iran have been at the fore of an alternative model, one where individual Governments are free to exert far more control over what their citizens can see and do online. This 'Balkanised' web would see the cross-border flow of information stifled for a host of reasons, crippling businesses and ushering in a new tide of state censorship.

Other countries have tilted in their direction, recently spurred on by revelations of their own infrastructure being targeted, but the 'Freedom Online' coalition, led by the US and Britain, has fought to preserve the current model. It was, and remains, a noble cause.

However, one of the most damaging aspects of the Snowden revelations is how willing the Freedom Online countries are now seen as espousing policy of do as we say, not as we do. Imagine if Brazilian intelligence had hacked into Exxon or BP, or it had been the Russian government attacking the data flow between Google's data centres. I expect the reaction in Parliament may have been slightly different to the muted assurances of oversight we have seen in recent months.

Lawmakers in the US have made clear to that reform is not optional, with a somewhat surprising coalition of the Tea party Republicans, libertarians, Obama loyalists and privacy advocates coming together to reign in the NSA's activities.

The outrage in the US may only now be pushing the President's hand but the first to recognise the damage were the technology companies. Facebook CEO Mark Zuckerberg's typically candid assessment that the US government "really blew it" and that "some of the government's statements have been profoundly unhelpful" set the tone at an early stage. Google later added "we are outraged at the lengths to which the government seems to have gone to intercept data from our private fiber networks" Hardly surprising from a business that has a customer base made up of 80% non-Americans, but the point is clear - international businesses don't win trust abroad if their Governments only afford protections to a minority of their domestically based customers.

Restoring this trust is a clear objective for the White House, not least because the concern about surveillance has already caused $35bn of damage to the US economy according to Bloomberg. It should be a pressing concern in Britain too, as businesses in Germany have already begun marketing their products on the country's strong privacy regime.

Equally, the US needs to act before the next round of internet governance talks begin later this year - in Brazil. The country offered to host the meeting when it became known the NSA had conducted several surveillance operations there, including monitoring Government communications, targeting the state oil company and intercepting data from President Dilma Rousseff's communications. The direction of travel is away from the free flow of data that has driven the internet forward and that should worry us all.

President Obama's NSA Review panel, which included a former Acting Director of the CIA and the man who was serving as George Bush's counter-terrorism advisor on 9/11, systematically and comprehensively assessed the US's current surveillance regime. They concluded that the economic damage could be 'severe' if US companies and infrastructure cannot be trusted because of government surveillance activity. They also reinforce the concern that intelligence agencies may be undermining cyber security for their own ends, exposing citizens and businesses alike to risks.

Restoring trust to the US and UK is both an economic and foreign policy imperative, and it cannot be done by sticking to the line 'we do not comment on intelligence matters.'

The US is now publishing detailed legal guidance on the scope of surveillance powers, detailing how and when they can be used and providing greater transparency. Hearings have been held on specific powers and briefings provided about internal oversight mechanisms, along with the results of internal audits on abuse of the systems. While the NSA has done this, with more to come, GCHQ has stayed silent. We have no idea what laws are being used to authorise programs now public and that bear little resemblance to the debates in Parliament when legislation was passed. Last week GCHQ's lawyers refused to confirm or deny the pronunciation of 'Tempora', one of the now public programmes.

Whatever your views on the scale of surveillance, the central issue is that from both an economic and foreign policy perspective, there is an incredibly delicate balance to be struck. Efforts to shut down debate in the UK mean these concerns go ignored, risking growth and our international authority. Particularly, why are back doors being hacked when there are legal front doors to get data from the likes of Google. Such behaviour is not becoming of nations that seek to set an example on internet policy.

The internet is by definition global and whether the UK government comments on intelligence matters or not, the impact will be real. The only way to address them is to allow some long overdue sunlight to shine on the intelligence agencies, bring forward meaningful reforms to ensure the law and oversight are fit for purpose in an internet age and once again set an example to the world about how surveillance, the internet and democratic values can be reconciled to the benefit of people at home and abroad.