However, we should be particularly wary of trusting the private sector to regulate surveillance. Markets can be effective at disciplining companies, but they operate best where there is competition, an expectation of repeat encounters and a free flow of information.
None of these factors exist in the realm of intelligence. The need for security clearances — and the notorious inefficiency of the process for granting new ones — severely restricts competition. Moreover, the movement of a limited number of individuals between government agencies and private contractors results in a form of regulatory capture, particularly when government employees are tasked with overseeing former colleagues and potential employers in the corporate world. Most obviously, the free flow of information is fundamentally incompatible with the secrecy needed in much intelligence work.
The simplest way to contain many of these problems would be to forbid certain activities from being delegated or outsourced to private actors at all. Intelligence services have a checkered history, but their legitimate activities in established democracies are justified by their grounding in the rule of law and a chain of accountability that leads to democratically-elected officials.
Though it was hardly his intention, the lasting consequence of Snowden’s leak may be to put hundreds of thousands of other contractors in positions like his out of a job.
Simon Chesterman is the dean of the National University of Singapore Faculty of Law and the author of One Nation Under Surveillance: A New Social Contract to Defend Freedom Without Sacrificing Liberty.
Copyright: Project Syndicate