The Swedish Foreign Minister's letter to The New York Times this week could have been written before the Snowden disclosures, but surely it is the product of them. Spoken from a premise of Western individualism and democracy, it calls for International Internet Law in support of those principles. His specific seven-point plan is worth repeating here:
- First, surveillance should be based on laws, and these must be adopted in a transparent manner through a democratic process. The implementation of these laws should be reviewed periodically to ensure that the expansion of surveillance capabilities due to technological advances is properly debated.
- Second, surveillance must be conducted on the basis of a legitimate and well-defined aim, and should never be carried out in a discriminatory manner.
- Third, the law should justify that surveillance is necessary and adequate to achieve legitimate aims.
- Fourth, a sound proportionality judgment must be made, to carefully assess whether the benefits of surveillance outweigh its negative consequences.
- Fifth, decisions on the use of communications surveillance should be made by a competent authority, and often an independent court is the best solution.
- Sixth, states should be as transparent as possible about how they carry out surveillance, providing information on how surveillance legislation works in practice.
- Seventh, public oversight must be done by parliamentary institutions that scrutinize how the laws work, assure transparency and build trust and legitimacy.
I have two basic observations regarding this plan. The first is that if the United States does not immediately get into the spirit of this kind of effort and support it authentically, it will be left behind in the development of International Internet Law for time to come, with effects ranging from remuneration to reputation not only as a government but for its people. I am not optimistic. It is axiom of history, human nature and political science that incumbents do not readily relinquish power. Enduring notions of American exceptionalism reinforce that defensive disposition.
The second observation is that given its international scope and relationships, higher education could exercise an influential role in this effort. Its institutions world-wide have the requisite expertise in areas ranging from law, economics, social and computer sciences, and engineering. As institutions designed for the public good, higher education has credibility to speak for humanity world-wide even while its schools sit in specific countries. And higher education has the start-up means to get the ball rolling: conferences! If this sectors knows anything practical, it knows how to put on a conference, and one on this topic should be created out of a consortium of global equals, not just elite U.S. Universities. Is there a university willing to get this ball rolling? Will that university be in the United States?
I fear if we do not spearhead these efforts, the United States will be left behind. Not tomorrow, not the day after, but eventually. If our elected officials, beholden to the anti-intellectual, foreign-phobic public sentiment that permeates our political culture even in the best of times, can’t make this move on behalf of a forward-looking perspective on what the United States could be in the century to come, higher education should. But will it?