Does America Owe Foreigners Any Privacy?

The case for constraining the NSA, even abroad
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Ivan McClellan Photography/Flickr

Domestic spying has been the understandable focus of U.S. citizens and policymakers as Edward Snowden's disclosures about the NSA made international headlines. But the leaks have given us a fuller understanding of foreign surveillance, too. Abroad, the NSA operates with less oversight and fewer legal constraints. Is it behaving in accordance with America's interests and values? For the first time, Americans have the ability to make an informed judgment. 

The panel that President Obama convened to study the NSA has already made suggestions for reforming the way that it behaves overseas. Among the "significant steps" they urged to protect the privacy of foreigners: Surveillance of non-Americans should be directed exclusively at protecting national security; shouldn't attempt to secure commercial gain; shouldn't target anyone "based solely on that person's political views or religious convictions;" shouldn't disseminate information about non-U.S. persons unless it protects national security; and "must be subject to careful oversight" and "the highest degree of transparency" consistent with protecting national security. The panel concluded that absent a specific, compelling showing, the Privacy Act of 1974 should apply to foreigners. 

For Charles C.W. Cooke of National Review, a British citizen who has written eloquently about the dangers of the NSA's domestic spying, these reforms go too far, "according to foreigners bulwarks to which they have no claim." Efforts to do so are "the product of fluffy one-world types who haven’t so much taken a libertarian exception to national-security overreach as folded the revelations into a toxic Weltanschauung that perceives America to be a global bully and force for ill," he argues. "If President Obama indulges this instinct, he will be abdicating his most elemental responsibility as the chief executive of the national government: to protect Americans from those who would do them harm."

After summarizing his substantial, strongly held objections to the NSA's domestic activities, he concludes that the problem is "an agency that is tasked with spying overseas has turned its attention to the homeland," not that the NSA is doing the job assigned to it. "The NSA isn’t just allowed to spy broadly outside of the United States," he writes. "That is precisely what it should be doing. The legal and moral questions that critics have posed to the NSA make sense only within the United States."

As a foreign national, he adds, he certainly isn't claiming that only Americans possess privacy rights. He just believes that, as a matter of law, "only two sets of people—American citizens and those within the country’s borders—are entitled to the legal protection of the Constitution," and that as a practical and moral matter

... a foreign power’s violating your privacy and your own government’s doing so are by no means the same thing. For the vast majority of people, the practical importance of one’s secrets being obtained by one’s own government considerably outweigh the importance of their being obtained by a foreign power.

These are not ridiculous arguments. A government spying on its own citizens really does present unique dangers; the NSA's activities abroad are far less legally dubious than its mass spying on the communications of American citizens; and foreign intelligence really is a prudent and legitimate thing to gather. Additionally, I find the presidential panel's suggested ban on foreign spying "based solely on that person's political views or religious convictions" to be puzzling. If an influential Saudi cleric's religious conviction is that all infidels ought to be killed, or if a rising Chinese official's political view is that America should be expelled from the Pacific islands by force, aren't those legitimate reasons to watch them?

I'd nevertheless go a lot farther than Cooke would to protect foreigners from current and future excesses of the U.S. surveillance state, both for their sake and for ours. The United States has an inherent right to defend itself from foreign threats. Beyond that, it has no moral claim to intrude into the private affairs of foreigners, and doing so in certain ways could certainly make it a force for ill. It's perhaps more useful to speak specifically about what I'd allow and what I'd forbid than to attempt an articulation of first principles, which I'm still working out. 

But my policy preferences are grounded in these general beliefs:

  • That indiscriminate mass surveillance is morally wrong, if not dystopian, and will grow increasingly problematic as technology advances.
  • That the power to spy on anyone in the world tends, like all power, to corrupt, making self-imposed constraints prudent.
  • That the U.S., a hegemon that frequently interferes in the affairs of foreign countries, has a special responsibility to guard against violating rights with surveillance.
  • That the people who run the U.S. national-security state are, like all humans, incapable of morally, prudently, and secretly manipulating foreign political events. They should refrain from trying if only for practical reasons.
  • That surveillance professionals tend to irrationally over-collect data, erroneously believing it's necessary even when it's actually overwhelming them.
  • That a world free of indiscriminate mass surveillance is in our enlightened national interest, as are universal privacy rights that enable self-governance.
  • That spying on leaders in countries that plausibly threaten our national security is the most legitimate form of foreign surveillance, and should be least constrained.
  • That spying on regular people in other liberal democracies is the least legitimate use of foreign surveillance, and ought to be the most severely constrained. 
  • That few secrets are kept forever, and the likelihood that a given kind of spying will ultimately be made public ought to inform whether or not it is done.
  • That it's in America's long term interest to preserve an Internet that affords users privacy.

I'd much prefer constraining the NSA, in accordance with those beliefs, than giving the foreign surveillance agency carte blanche to spy abroad however its officials see fit. How would I formulate the limits of foreign surveillance? I don't have language worked out that could be dropped into a piece of reform legislation, but I can lay out some tentative hypotheticals that fall on both sides of my line. I make no comment on their plausibility. They're offered as thought experiments.

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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