More on the Rights of Others – Ben Wittes’ Failure of Imagination

Ben Wittes weighs in today on Lawfare on the side of rejecting privacy rights for anyone but U.S. citizens, aligning himself with Orin Kerr and against myself [see my previous posts on this subject on Just Secuirty here and here] and Human Rights Watch executive director Ken Roth.  Wittes endorses Kerr’s idea that privacy can only rest on a social compact theory, and that the social compact therefore only extends to U.S. citizens.  But he goes further, insisting that he doesn’t even know what a global right to privacy might look like.  Neither ground – the social compact or the difficulty of imagination — seems a persuasive basis for rejecting out of hand a global privacy right.

First, as to social compact theory:  the whole conception of human rights is premised at least in part on the notion that certain rights are inherent in human dignity, so that states do not have the authority to violate them, regardless of the “social compact.”  Would we say that the US should be free to torture foreign nationals, or to commit genocide against foreign nationals, simply because the victims are not US citizens and part of our social compact?  I hope not.  Moreover, there is no reason that a social compact need limit its rights to those who make up its polity; many of the rights in the Constitution, including all those associated with criminal trials, apply equally to foreign nationals and US citizens.  And even if you are strict contractarian, what about the compact we have actually entered into, namely the International Covenant on Civil and Political Rights, which expressly guarantees a right of privacy to all human beings, not just to US citizens?

Wittes’ second argument is merely a failure of imagination.  He argues that since he can’t conceive of a warrant being required for spying, there must not be any global right of privacy.  Indeed, he goes further to say that “I don’t even know what [privacy] means” at the international level.

I confess that working out the proper contours of a right of privacy on a global scale would be challenging.  It’s hard enough to get the Democrats and Republicans in Washington to come to consensus these days, much less China, Russia, the US, Germany, and Venezuela.  But that challenge is faced by all international rights norms.  It doesn’t mean that they are inconceivable, or not worth working toward.

There’s nothing intrinsic to the right to privacy that is inherently limited to a nation’s borders, or to its citizens.  Privacy is the right not to be intruded upon by others – regardless of their identity.  If there is a right to have private communications with one’s spouse in one’s bedroom that precludes intrusion absent very strong reasons, the same right might well extend to UK snooping as to US snooping.  I for one would like to know that my privacy, which we jealously insist on guarding from our own state officials, is not free reign for any other nation’s officials – particularly now that digital technology makes it possible for another nation to spy on me and us, in ways that were truly not imaginable ten years ago.

Wittes argues that it makes no sense to protect privacy from spies.  Foreign intelligence gathering, of course, is by definition not limited to criminal law enforcement.  But that does not mean that all bets are off.  In the Foreign Intelligence Surveillance Act, for example, we require the FBI to make individualized showings that a target is an agent of a foreign power before authorizing wiretaps and physical searches – as long as the target is here in the United States. Why couldn’t such a requirement apply to targets abroad?  That would permit spying on persons who have useful intelligence information because of their status, but would protect ordinary citizens doing nothing wrong from obtrusive electronic monitoring.

The point is not that the solution is necessarily to adopt FISA’s protections for US persons as a model for privacy-intruding intelligence gathering more broadly.  FISA may not be protective enough, or it may be too protective.  The point is simply that it is possible to imagine a privacy right that extends beyond borders.  I am not endorsing FISA as a solution; just noting that there is nothing unimaginable about extending its protections. We already extend FISA rights to US citizens abroad.  Why is it so difficult for Wittes to conceive of treating everyone equally?

Edward Snowden has shown us – and the world — that the threats to our privacy are now global.  Technology does not respect borders.  If we are to maintain privacy in the digital globalized world, we cannot simply write off protection for noncitizens as unthinkable. 

About the Author(s)

David Cole

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