(Photo credit: jonathan mcintosh)
In 1949, nations around the world came together to establish basic standards of treatment for prisoners, the wounded, and civilians during times of war. The rationale for what became known as the Geneva Convention was as much practical as it was moral: not only would this afford all individuals basic rights and dignity, even in times of violent conflict, it would prevent the needless death and suffering of millions of military personnel, medics, and civilians. While any nation could unilaterally adopt such principles, no nation, acting alone, could achieve the international recognition of such a wide array of principles. Moreover, by signing on to the convention, nations signaled that this was a firm commitment, subject to international scrutiny and oversight, and one that could not be revoked lightly in troubled times.
Today, electronic government surveillance has become a tool of modern conflicts, used, often indiscriminately, to spy on enemy combatants, foreign corporations and individuals, and domestic citizens alike, often with little restraint from domestic laws and even less regard for international ones. In the process, legitimate companies trying to provide innovative information technology products and services to their customers are facing demands from governments around the world to pervert their offerings for the sake of intelligence gathering. The result has been growing unease from consumers and businesses who fear they can no longer trust certain companies subject to potential government mandates to disclose data.
This status quo is neither constructive nor sustainable. The United States in particular has been a global champion of democracy and free trade, more so than perhaps any other nation, and unless it plans to relinquish that identity in the coming years, it needs to recalibrate its agenda to endorse digital policies that support these goals. Already, nations around the world are poised to respond with a series of protectionist laws which, although running counter to existing free trade agreements, are increasingly justified because of certain governments’ excessive use of electronic surveillance. Germany, India, and Brazil have all offered proposals in recent months to keep their data exclusively within their own country’s borders which would effectively destroy the open, global nature of the Internet and significantly hamper trade in digital goods and services.
Make no mistake—these protectionist measures represent a lose-lose scenario where many companies will be excluded from international markets and consumers and businesses in foreign countries will lose access to some of the most innovative services in the world. However, for national leaders who feel that pervasive government spying is an affront to the basic rights of their citizens, such action is warranted.
The very nature of the problem—that intelligence agencies are using the coercive power of the state to mandate that companies turn over data to the government—demands that the solution must come from the public sector, not the private sector. While companies can strengthen technical and administrative security controls and limit voluntarily disclosure of data through private contracts, they can do little when faced with court orders to hand over data to the government. To address this issue, nations should come together to establish a “Geneva Convention for Data,” which would both protect the rights of citizens from unreasonable search and seizure of their information by governments and establish a digital free trade zone unencumbered by protectionist laws restricting cross-border data flows. This multilateral agreement would establish specific rules for government transparency, create better cooperation for legitimate law enforcement requests, and limit unnecessary access to data on foreign citizens. It would also settle questions of jurisdiction when companies encounter conflicting rules, assist nations in reassuring individuals at home and abroad that the era of mass electronic surveillance unencumbered by judicial oversight is at an end, and better hold nations accountable for respecting basic civil liberties. And just as the principles of the Geneva Convention are taught to soldiers in basic training, the principles of a Geneva Convention for Data would be taught to network administrators and IT professionals worldwide, thereby ensuring that the ethics of the agreement are embedded at all levels of industry and government.
Ideally, many nations would sign on to such an agreement, but even if it were limited to key trading partners or integrated into existing multi-lateral and bi-lateral trade agreements, an initiative such as this could usher in a new era of free trade in digital goods and services marked by shared economic prosperity and respect for civil liberties. Unless nations currently engaged in mass electronic surveillance step forward to create an international system that establishes reasonable limits on government access to data, others may eventually decide the cost of doing business is too high.
Daniel Castro is a Senior Analyst with the Information Technology and Innovation Foundation.