International Proscriptions on Mass Surveillance (or What’s Missing in the Greenwald vs. Wittes Debate)

[Editor’s Note: On Tuesday, Ben Wittes and Ashley Deeks over at Lawfare replied to the following post. And Ryan has since posted a rejoinder to Ben and Ashley.]

This weekend’s New York Times story (David E. Sanger and Nicole Perlroth reporting) on US hacking into the Chinese telecommunications giant, Huawei has inspired a thoughtful debate about the propriety of the media publishing information about secret NSA intelligence surveillance of foreign populations.

The editorial decision to publish the story may have been wrong-headed, all things considered. Nevertheless, Glenn Greenwald is correct to seize on a key distinction:

“[T]here is a huge difference between spying on what are generally regarded to be legitimate foreign targets (political and military officials of adversary governments) and collecting the private communications of entire populations en masse.”

Although Glenn does not mention it, international law backs him up—and as a consequence cuts into Ben Wittes’s critique of Glenn’s position.

Over at Lawfare, Ben criticized Glenn largely on the ground that it is perfectly lawful for the US to spy on foreign populations. Ben wrote (with his emphasis):

“The United States—like all countries that apply law to espionage at all—treats spying domestically and on its own nationals as legally different from spying abroad. The result is that there’s greater legal question about the propriety of spying on Americans than there is about spying on foreigners overseas. Indeed, we have an NSA precisely in order to spy on people in other countries. So the mystification at the eagerness of the press to blow sensitive intelligence programs, a mystification I share, is a mystification at the press’s eagerness to expose lawful conduct deemed in the national interest by the democratically elected representatives of the people.”

There are two leaps in Ben’s analysis.

First, his starting point is that there is a “greater legal question” about spying on Americans than there is about spying on foreigners overseas. That statement appears to admit that there is, indeed, a legal question with respect to the propriety of spying on foreigners abroad—even if it is a “lesser” legal question than spying on Americans. But Ben then moves quickly to the assertion that spying on foreigners is “lawful conduct.” If the legality of the operations is an open legal question, however, his argument is much weaker, if not lost.

Second, Ben’s assertion requires a leap of faith about international law—an assumption that there are no legal proscriptions on intelligence surveillance of foreign populations. I don’t fault Ben for making this mistake. It is a common one. Indeed, the assumption informs Ben’s challenge to Greenwald about existing state practice and governments’ recognition of legal constraints:

“I would challenge [Greenwald] to find a single example of a country that applies the same privacy rules to espionage in foreign adversary countries as it does to its own people ….”

Of course that is a false choice. The question is not whether countries apply the same privacy rules to foreign populations and their own people. The question is whether countries recognize meaningful privacy constraints apply to their foreign intelligence activities. And here is where Greenwald’s distinction kicks in.

Not only is there solid support for the proposition that states recognize privacy constraints on foreign surveillance as a matter of international human rights; one can identify over fifty states –if not the overwhelming majority of the UN member states — that have done so explicitly. In late 2013, fifty-six states sponsored the UN General Assembly Resolution on “The Right to Privacy in the Digital Age.” The Resolution, adopted with overwhelming support from UN member states, focuses on “mass surveillance” and was inspired by foreign governments’ opposition to NSA operations abroad. States were careful to maintain the Greenwald distinction. According to the summary record, for example, “[t]he representative of Canada said unlawful and arbitrary surveillance infringed the rights of individuals and welcomed the distinction that the draft resolution made between regular and mass surveillance.” As Philip Alston has explained, the Resolution is expressly grounded in both the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights.

Notably, the UN Resolution has been followed by a European Parliament resolution (in March 2014) which states that “mass surveillance of human beings is incompatible” with “fundamental rights, notably freedom of expression, of the press, of thought, of conscience, of religion and of association, private life.” And watch this space for the forthcoming concluding observations by the UN Human Rights Committee. During the recent US report to the UN body, at least some members of the Committee drew attention to NSA extraterritorial intelligence practices in strong terms:

“With regards to the interception of the content of electronic communications worldwide by its intelligence services, Experts wondered whether the United States considered that the rights to privacy and to freedom of expression enshrined in the Covenant applied to foreigners living outside of the American territory.  Experts believed that such interpretation would indeed defeat the object and purpose of the Covenant.”

For an understanding of that legal perspective, check out former member of the Human Rights Committee Martin Scheinen’s Letter to the Editor at Just Security. (And for an opposing perspective, see Jennifer Daskal’s post here.)

The issue of mass surveillance goes to the heart of the international human rights argument. As I explain in a forthcoming post, it helps to address some of the questions raised by PCLOB members at last week’s hearing on international law and foreign intelligence surveillance.

[Editor’s note: Coming soon on Just Security, Ryan Goodman’s blog post, “What does international law really say about the privacy rights of foreigners?: A analysis of John Bellinger’s testimony before the PCLOB.”] 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.