When it comes to mass surveillance, should foreign nationals in foreign territory be afforded the same privacy protections as one’s own nationals? According to a recent report on “mass digital surveillance for counter-terrorism” by the UN Special Rapporteur Ben Emmerson, the United States is currently in violation of a fundamental principle of equality by affording foreign nationals abroad fewer privacy protections (paras. 42-43). Some NSA programs, for example, purposefully collect and analyze the content of electronic communications of foreigners abroad, but not of US nationals at home or abroad. The UN Special Rapporteur states that such differential treatment is patently unlawful:

“The Special Rapporteur thus considers that States are legally obliged to afford the same privacy protection for nationals and non-nationals and for those within and outside their jurisdiction. Asymmetrical privacy protection regimes are a clear violation of the requirements of the Covenant.”

In this post, I interrogate what I call the “parity principle” that Emmerson (and others) have put forward.

I outline reasons to provide foreign nationals abroad less privacy protections than one’s own nationals. And, I outline reasons to provide foreign nationals abroad more (or qualitatively different) protections.

In short, the best answer, as a matter of law, is far more complicated than a superficial parity principle suggests. And the next frontier of thinking about foreign surveillance and privacy rights would benefit from a deeper analysis. The following is my attempt at a modest contribution to that conversation.

Three Reasons to Provide Foreign Nationals Abroad Less Privacy Protections

1. Limited means of information detection: A state has fewer resources available to detect potential threats to its national security from foreign nationals abroad compared to its ability to detect such threats within its own borders or by its own nationals. Accordingly, in many cases electronic surveillance may be a necessary and more valid tool specifically in the foreign context. (Peter Margulies makes a similar point over at Lawfare.)

2. Threat of the surveillance state: A major concern about surveillance is the threat to citizens from their own government infiltrating their private lives and gathering information about them. The potential relationship of dependence and control between a government and its citizens is evident, for example, in the European Court of Human Rights’ discussion of secret surveillance. The Court wrote: “in view of the risk that a system of secret surveillance for the protection of national security may undermine or even destroy democracy under the cloak of defending it, the Court must be satisfied that there exist adequate and effective guarantees against abuse” (Weber v. Germany 2006 para. 106). But such concerns about democratic stability are, at the least, most relevant and most acute in the domestic context—and not so much in dealing with a state applying it surveillance powers to foreigners abroad.

3. Enforcement authority: One of the concerns about government surveillance is the punitive sanctions that the state can levy on the basis of the information it discovers about someone. A government, however, has far less ability to detain, prosecute, sentence to prison, or seize the property of foreign nationals abroad compared to individuals within its own territory or its own nationals. By way of analogy, why are people more concerned about the government collecting large amounts of information about them rather than about Google having that information? The answer is in part because Google can’t lock them up. The same logic generally applies to cases of a state’s domestic surveillance (and of its own nationals) compared to a state’s surveillance of foreigners abroad.  The state’s capacity to subject the latter to enforcement authority is more limited.

Three Reasons to Provide Foreign Nationals Abroad More (or Qualitatively Different) Privacy Protections.

Note: All three of the following reasons indicate that the standard procedural rules regulating surveillance in human rights law do not function well with respect to surveillance of foreigners abroad. After moving through these reasons, I discuss why human rights law (and human rights bodies) may accordingly need to place greater emphasis on substantive protections.

1. Political process check: In a system of domestic surveillance, the public has a greater ability to put pressure on their political representatives if the laws intrude too significantly on their privacy rights and interests. Not so for foreign nationals—the French citizen in France doesn’t get to vote or, more importantly these days, spend money in US elections. Foreign surveillance lacks these national-level political checks.

2. Ability to notify (accessibility and foreseeability): One of the key requirements of international human rights law is the notice afforded by public and transparent surveillance laws. But even if laws are public and transparent, it is difficult to expect a French citizen to be aware of all the surveillance laws of all countries that might over time be intercepting his communications. (The UN Special Rapporteur makes a similar point in his report (para. 43).)

3. Ability to remedy:Under international human rights law, a key safeguard against abuse is the ability of victims of a violation to obtain a remedy. In one of its earliest surveillance cases, the European Court of Human Rights explained:

“The Court must be satisfied that, whatever system of surveillance is adopted, there exist adequate and effective guarantees against abuse. This assessment has only a relative character: it depends on all the circumstances of the case, such as … the kind of remedy provided by the national law.” (Klass v. Germany 1978, para. 50).

It is generally considerably more difficult for a foreign national in a foreign country to obtain a remedy from the US government compared to individuals residing inside the United States or to US nationals.

* * *

I do not, in this post, have an answer to how to resolve the two competing lists of reasons. And, indeed, the lists are not exhaustive. I chose to highlight just a few specific rationales on either side.

That said, the second list does raise concerns about the efficacy of procedural safeguards in the foreign surveillance context. Domestic courts and international human rights tribunals have emphasized a handful of procedural rules to regulate state surveillance (e.g., requirements for public and transparent laws). As indicated above, these rules generally function best — and, in many cases, are founded upon an assumption that they will operate — in a domestic context. Accordingly, I have doubts about the efficacy and wisdom of an international legal framework for foreign surveillance that relies on procedural mechanisms, as described and espoused by Professor Ashley Deeks in her important forthcoming law review article, “An International Legal Framework for Surveillance,” Virginia J. of Int’l Law (2015). If one believes it is a good idea to build an international legal framework to protect some aspects of foreign nationals’ privacy rights, it will be important to develop substantive rules—such as policing the boundary of what counts as a legitimate government interest and proportionate intrusions on privacy.

Whatever approach is taken, we need to think critically about the reasons for affording privacy protections to different categories of individuals in different geographic contexts.