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Congress Considers the Balancing Act Between Security and Privacy

Tom Williams/CQ Roll Call File Photo
Leahy and other lawmakers have called for updates to surveillance laws.

The tech sector is now predicting a worst-case scenario of losing foreign customers, and is letting Congress know about it.

“I’ve heard from a number of companies who worry that their global competitiveness has been weakened and undermined,” Senate Judiciary Chairman Patrick J. Leahy, D-Vt., said during a December hearing. “They say that the American businesses stand to lose tens of billions of dollars in the coming year. And we need to make substantial reforms to our surveillance laws to rebuild confidence in the U.S. technology industry.”

For cloud computing alone, U.S. companies could lose up to $35 billion in business over the next three years because of loss of trust in their services, particularly abroad, according to the Information Technology and Innovation Foundation think tank. The analytics firm Forrester Research came up with an even grimmer assessment: up to $180 billion in the same period.

The inability to disclose much about their dealings with the NSA and the intelligence community is hurting those companies, Minnesota Democratic Sen. Al Franken said this week.

Edward Black, president and CEO of the Computer and Communications Industry Association, an industry lobbying group, said he has his doubts about the accuracy of loss projections — the cloud is a growing sector where the United States is poised to lead, and predicting how much is companies might lose is difficult — but the problem is real.

“I don’t buy any number I’ve seen so far, but I don’t dispute the magnitude,” he said.

Black’s group is making the case to Congress that the technology sector isn’t against surveillance, but that the government has to strike a better balance between ensuring security and preserving privacy. Many other countries have more invasive surveillance policies, he noted.

If the United States wants to help the industry bounce back from the bad publicity of the Snowden disclosures, he added, it should aim to become an example of privacy for those nations to follow, including when it comes to the treatment of foreigners.

When a presidentially appointed panel of experts released a set of recommendations for overhauling intelligence work in December, it also called for the NSA to change how it handles metadata from foreigners.

The agency currently takes much greater liberties when obtaining information on noncitizens, but the panel said the NSA should apply a 1974 privacy law (PL 93-579) defining restrictions on the collection and retention of personal data in the same way to citizens and noncitizens unless it is able to show a compelling reason to do otherwise.

The Spy Lobby

The technology lobby, which collectively in recent years has spent millions on its legislative priorities, may be powerful, but it faces an equally formidable foe in the intelligence community.

Although officials such as NSA head Gen. Keith B. Alexander have been lambasted by congressional critics of the agency’s work, they also have powerful allies in the Intelligence committees, where leaders continue to defend metadata collection and other operations.

Black argues that part of the strength of the intelligence community’s influence has to do with access, or a lack thereof. Many members of Congress either don’t have access to intelligence information or aren’t well-versed in it, and take their cues from those who are.

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