Cross Border Data Flows: Could Foreign Protectionism Hurt U.S. Jobs?: Hearing Before the Subcomm. On Commerce, Mfg. & Trade of the H. Comm. on Energy & Commerce, 113th Cong., Sept. 17, 2014 (Statement of Laura K. Donohue)
Documents released over the past year detailing the National Security Agency’s telephony metadata collection program and interception of international content under the Foreign Intelligence Surveillance Act (FISA) directly implicated U.S. high technology companies in government surveillance. The result was an immediate, and detrimental, impact on U.S. firms, the economy, and U.S. national security.
The first Snowden documents, printed June 5, 2013, revealed that the U.S. government had served orders on Verizon, directing the company to turn over telephony metadata under Section 215 of the USA PATRIOT Act. The following day, The Guardian published classified slides detailing how the NSA had intercepted international content under Section 702 of the FISA Amendments Act. The type of information obtained ranged from E-mail, video and voice chat, videos, photos, and stored data, to Voice over Internet Protocol, file transfers, video conferencing, notifications of target activity, and online social networking details. The companies involved read like a who’s who of U.S. Internet giants: Microsoft, Yahoo, Google, Facebook, PalTalk, YouTube, Skype, AOL, and Apple.
More articles highlighting the extent to which the NSA had become embedded in the U.S. high tech industry followed. In September 2013 ProPublica and the New York Times revealed that the NSA had enjoyed considerable success in cracking commonly-used cryptography. The following month the Washington Post reported that the NSA, without the consent of the companies involved, had obtained millions of customers’ address book data: in one day alone, some 444,743 email addresses from Yahoo, 105,068 from Hotmail, 82,857 from Facebook, 33,697 from Gmail, and 22,881 from other providers. The extent of upstream collection stunned the public – as did slides demonstrating how the NSA had bypassed the companies’ encryption, intercepting data as it transferred between the public Internet and the Google cloud.
Further documents suggested that the NSA had helped to promote encryption standards for which it already held the key or whose vulnerabilities the NSA understood but not taken steps to address. Beyond this, press reports indicated that the NSA had at times posed as U.S. companies—without their knowledge—in order to gain access to foreign targets. In November 2013 Der Spiegel reported that the NSA and the United Kingdom’s Government Communications Headquarters (GCHQ) had created bogus versions of Slashdot and LinkedIn, so that when employees from the telecommunications firm Belgacom tried to access the sites from corporate computers, their requests were diverted to the replica sites that then injected malware into their machines.
As a result of growing public awareness of these programs, U.S. companies have lost revenues, even as non-U.S. firms have benefited. In addition, numerous countries, concerned about consumer privacy as well as the penetration of U.S. surveillance efforts in the political sphere, have accelerated localization initiatives, begun restricting U.S. companies’ access to local markets, and introduced new privacy protections—with implications for the future of Internet governance and U.S. economic growth. These effects raise attendant concerns about U.S. national security.
Congress has an opportunity to redress the current situation in at least three ways. First, and most importantly, reform of the Foreign Intelligence Surveillance Act would provide for greater restrictions on NSA surveillance. Second, new domestic legislation could extend better protections to consumer privacy. These shifts would allow U.S. industry legitimately to claim a change in circumstance, which would help them to gain competitive ground. Third, the integration of economic concerns at a programmatic level within the national security infrastructure would help to ensure that economic matters remain central to national security determinations in the future.