January 18, 2024
Warren: “American data policy should be decided by the American people through their representatives right here in Congress – not trade tribunals, not trade negotiators, and certainly not Big Tech.”
Washington, D.C. —Today, at a hearing of the Committee on Banking, Housing and Urban Affairs, U.S. Senator Elizabeth Warren (D-Mass.) questioned Emily Kilcrease, Senior Fellow and Director of the Energy, Economics, and Security Program at the Center for a New American Security, on the national security risks posed by digital trade rules that allow tech companies to collect, sell, and store Americans’ data wherever is cheapest, including China.
At the hearing, Senator Warren pressed Ms. Kilcrease about the repercussions of allowing Big Tech companies to sell personal data about U.S. government and military personnel to foreign adversaries, which include counterintelligence risks like hacking, blackmail, and the tracking of U.S. troop movements. Senator Warren also reiterated the need to prevent Big Tech companies from leveraging U.S. trade agreements to continue to auction off Americans’ private data to the highest bidder, especially given ongoing efforts by Congress and the Biden administration to address the risks associated with unrestricted cross-border data flows.
Senator Warren also noted that while data flow provisions in trade agreements often contain exceptions for national security or legitimate public policy, those exceptions have proven unreliable. As Ms. Kilcrease noted in response to Senator Warren’s question, the World Trade Organization has only allowed countries to use the public policy exception in two out of 48 cases.
Statement: National Security Challenges: Outpacing China in Emerging Technology
U.S. Senate Committee on Banking, Housing and Urban Affairs
Thursday, January 18, 2024
Senator Warren: Thank you, Mr. Chairman.
Every time you log on to a website, Big Tech companies collect extremely detailed data about your spending habits, your physical location, your health status, your political beliefs, your religious beliefs, and more. And every 30 seconds, Big Tech companies auction off that data to the highest bidders here and around the world.
Now, Americans’ data are broadcast in this way 107 trillion times — that’s trillion with a ‘T’ — every year. This doesn’t just pose a risk to Americans’ privacy, it also poses a risk to our national security.
Reports have found that some buyers of our data build huge dossiers of extremely personal information about U.S. government officials and military servicemembers. They then turn around and sell that information to companies in China and Russia, where the Chinese and Russian governments can access it without our even knowing anything about it.
Ms. Kilcrease, you’ve spent years in government service working on issues like data security policy. So when China or another foreign government gets their hands on our data, what can they do with it?
Ms. Emily Kilcrease: Well, nothing good comes out of that situation, Senator Warren, so thank you for the question.
There’s a range of national security risks that can arise from the unfettered transfer of that sort of information on U.S. citizens. To take one example, there’s certainly been public reporting about Fitbits on U.S. soldiers being used to enable the movement of our troops. That’s a clear national security concern.
And when you think about the types of personal information that’s available online and can be collected and sold, as you note, you can think about enabling blackmail, you can think about enabling cyber exploits. It’s just a massive counterintelligence concern, essentially, when that level of information is for sale on the open market about individuals who are in the sensitive positions
Senator Warren: But Big Tech tells us that it is helping us when they sell or store your data however they want wherever they want, because it will improve your online shopping experience, or — they claim — it will help keep your data safe.
In reality, the only winners are foreign governments and the tech companies themselves.
Harvesting more of your data means you get more targeted ads, and Big Tech gets more revenue from those ads. And as part of the bargain, foreign governments, our adversaries, get access to compromising information about U.S. military and government personnel and their families.
Now, Congress and the Biden administration have plans to address those risks. And Big Tech companies know this. That is why they are hijacking our trade agreements to slip in provisions that would prevent policymakers from limiting Big Tech’s ability to transfer our data wherever they want.
Now, the Big Tech lobby likes to say, don’t worry, Congress could still act to protect Americans’ data under certain exceptions. Like if there is, a quote, “legitimate policy or national security need.”
Ms. Kilcrease, in theory, the exceptions that Big Tech companies want us to rely on would give policymakers some ability to override the data provisions that Big Tech slips into trade deals. But of the 48 times that countries have invoked a public policy exception at the World Trade Organization to protect their domestic policies, how many times has it actually worked?
Ms. Emily Kilcrease: You know, I think when those sorts of public policy exceptions are raised in the WTO context, not speaking for when the U.S. government raises it because, presumably, we are always acting with legitimate public policy and national security interests in mind. But I understand that the number is fairly limited in terms of —
Senator Warren: Do you happen to know the actual number?
Ms. Emily Kilcrease: I believe it may be two, ma’am.
Senator Warren: Two. So twice out of 48 times, this exception has actually been worked. Just two times.
I gotta say, I don’t like our chances on using this exception. And the national security exception is no more reliable. Trade law tribunals have consistently ruled against the U.S.’ use of this exception.
Unaccountable trade tribunals should not decide who gets access to information about American soldiers, and about our national security. And Big Tech companies cannot be allowed to co-op trade policy for their own benefit, especially when that means continuing to allow the Chinese and Russian governments easy access to personal data about U.S. government officials and our military, putting our national security at risk.
American data policy should be decided by the American people through their representatives, right here in Congress, not by trade tribunals, not by trade negotiators, and certainly not by Big Tech.
Thank you, Mr. Chairman.