We Are All Foreigners: NSA Spying and the Rights of Others

The New York Times reports today that President Obama is expected to ban eavesdropping on the phones of our allies’ presidents and prime ministers.  There is no indication, however, that he will respond to some of the other revelations of the past weeks, namely that the National Security Agency (NSA) has also been collecting data on tens of millions of French and Spanish phone calls (and as there’s no reason to suppose that France or Spain are unique, presumably on the phone calls of millions of citizens of many other countries as well).  Why is it so much more important to protect the privacy of foreign political leaders than of the people themselves?  The right to privacy, protected in human rights treaties that the US has signed, such as the International Covenant on Civil and Political Rights, is not limited to the people’s leaders, but is said to be a right of all human beings.  Edward Snowden’s latest revelations, which only begin to hint at the extent of transnational electronic snooping that the NSA has apparently been conducting, demonstrate that the preservation of privacy is not merely a matter of domestic law, but of transnational governance.

It is all too easy to dismiss the concerns of foreigners.  The easy way to balance privacy and security is to sacrifice the privacy of someone else in order to benefit one’s own security.  American law and politics have long taken the view that our constitutional and statutory privacy protections are limited to persons within the United States, and US citizens outside our borders.  The Supreme Court has ruled that the Fourth Amendment does not apply to searches of foreigners’ homes overseas.  The Foreign Intelligence Surveillance Act is focused on protecting U.S. citizens and persons, and offers no protection for foreign citizens outside our borders – even though they are just as vulnerable to wiretaps and other forms of electronic monitoring as are US citizens.  And in the substantial public debate that Snowden’s disclosures have prompted here, virtually all the concern voiced here has focused on NSA monitoring of U.S. citizens’ communications.

It is understandable that Americans care more about their own rights than those of others.  But we should not be so quick to dismiss the rights of the foreigner.  First, the reality is that we are all foreigners from the standpoint of every other nation. And while at the moment the NSA may be at the forefront of technological surveillance capacity, other nations are not likely to be far behind. How would we feel if we had recently learned that France – or China – was collecting data on millions of Americans’ communications, or directly monitoring President Obama’s cell phone?  If we extend no protection to other countries’ nationals, why should we expect them to respect our privacy rights?  Thus, it’s in our own interest to identify some reciprocal principles to preserve privacy in the digital age.

Second, we are all much more likely to be engaged in international communications than ever before. The Internet has erased national borders to a significant extent.  It is as easy to read the latest news from the BBC, The Guardian, or Le Monde as it is to read the New York Times or the Washington Post.  We can Skype with a friend in Glasgow as easily as our parents in Chicago.  Should all bets be off simply because our communications cross national borders?  Indeed, as many foreigners have learned, on the Internet you may not even know that your communication has crossed national borders, because a domestic communication may well be routed through another country without your knowing it.

Third, effective intelligence requires transnational cooperation.  If we engage in practices that incur the ire of large swaths of the public in foreign countries, we are much less likely to find the cooperation we need from their governments, or from the people themselves. The people themselves are often the best sources of intelligence. But if the people come to resent the US because it is spying on them without just cause, they are much less likely to provide intelligence. And they are much more likely to object to their governments sharing information with us as well.

Our allies in Europe are understandably upset at what we have been doing – just as we’d be upset if they were doing it to us. The way forward will require both reform of our own domestic laws and transnational agreements. But as a first step, what is essential is that we not assume that simply because someone is not a US citizen, he or she is not deserving of the fundamental protections of privacy.  Privacy is a human right, not a privilege of US citizenship. 

About the Author(s)

David Cole

National Legal Director of the ACLU and Professor at Georgetown University Law Center Follow him on Twitter (@DavidColeACLU).