Many Reasons Why The US Government Should Respect The Privacy Rights Of Foreigners Too

Privacy

from the don't-mock-it dept

After Judge Leon’s ruling against the NSA on Monday, Tim Worstall pointed out that the ruling really meant that the NSA could continue to spy on 6.7 billion non-Americans. This is a point that has come up a few times (especially from non-Americans). While we argue over these programs, much of the focus has been entirely on the issue of whether or not the NSA can spy on “US persons” or not, and much less attention has been paid to the question of foreigners. The basic argument there is pretty simple: the 4th Amendment applies to Americans. Everyone else isn’t covered by that, and if they have a problem with the US spying on them, they should take the issue up with their government, who can take it up with the US.

Of course, reality is a lot more complicated than that. And that’s partly why it was a nice surprise in the report from the White House task force reviewing these surveillance programs to not just focus on the privacy of Americans, but also on how it should deal with surveillance on non-US persons. There are a variety of details, but here’s the executive summary version of what the report recommended:

Significant steps should be taken to protect the privacy of non-US persons. In particular, any programs that allow surveillance of such persons even outside the United States should satisfy six separate constraints. They:

1. must be authorized by duly enacted laws or properly authorized executive orders;
2. must be directed exclusively at protecting national security interests of the United States or our allies;
3. must not be directed at illicit or illegitimate ends, such as the theft of trade secrets or obtaining commercial gain for domestic industries;
4. must not target any non-United States person based solely on that person’s political views or religious convictions;
5. must not disseminate information about non-United States persons if the information is not relevant to protecting the national security of the United States or our allies; and
6. must be subject to careful oversight and to the highest degree of transparency consistent with protecting the national security of the United States and our allies.

We recommend that, in the absence of a specific and compelling showing, the US Government should follow the model of the Department of Homeland Security and apply the Privacy Act of 1974 in the same way to both US persons and non-US persons

This is actually a pretty big deal. Jennifer Granick, over at the Just Security blog does a good job explaining why this issue matters so much, and why those who insist that foreigners are on their own are missing the point.

Foreigners’ privacy is essential to American interests. We’ve learned that National Security Agency (NSA) practices which purportedly target foreigners nevertheless directly harm Americans’ privacy. This is because, as the Review Board says, “traditional distinctions between ‘foreign’ and ‘domestic’ are far less clear … than in the past, now that the same communications devices, software, and networks are used globally by friends and foes alike.”

She goes on to describe how the NSA effectively uses some loopholes in the law to use this ability to spy on any non-US person to actually collect a ton of info on Americans as well. But it goes beyond that. It should be a fundamental recognition that treating others badly mean they’re likely to treat you badly in return. Stomping all over the privacy of the rest of the world creates massive headaches for Americans as well, because it makes us all targets. Showing a modicum of respect for others makes it more likely that they’ll show some respect back.

Granick highlights how not respecting the privacy of foreigners is clearly bad for US businesses, democracy and internet freedom:

…unfettered surveillance of foreigners is bad for U.S. business and a blow to free expression and democracy movements around the world. Without question, the role of Internet firms, especially those based in America, is a net plus for democracy abroad. Yet, unfettered spying has driven the EU to call for localization of services, which plays right into the hands of nations who want more control over the Internet within their own borders in order to censor, spy on, and control their citizens.

But I’d take it even further. Arguing that we can ignore the privacy of foreigners is akin to extreme (and economically illiterate) people who insist that “free markets” and “capitalism” mean that you should only look out for yourself, and not care about others. But that ignores the basic transaction costs in everyday life built around relationships and trust. People who always look out for themselves only, cut themselves off on the (massive) benefits of being able to work together to achieve more as a team. The same is true here, but on a larger scale. Arguing that we have no duty to care about the privacy of others leads us to a world in which we’re pissing off 6.7 billion people that Americans need to interact with in a variety of different ways, both personally and in business, for no good reason at all.

It’s a global society, and part of that means recognizing that you have to treat people beyond your borders with respect if you want any respect to come back to you. Recognizing that they have some basic rights to privacy seems like a good place to start — and so it’s great that the task force didn’t ignore it completely.

The real question, though, is how the President and the White House will respond, and whether or not it will actually agree to such a proposal.

Filed Under: 4th amendment, foreigners, nsa, privacy, surveillance