NSA Files: An Emerging Human Right to Privacy?

by Peter Spiro

Josh Gerstein has this interesting piece at Politico on how the citizenship divide is breaking down as a defensible perimeter in the legal justification of electronic surveillance. It’s clear where the old reflex is coming from: lawyers steeped in a constitutional tradition that distinguishes citizens from foreigners (and US territory from foreign territory) in the application of constitutional rights. (The key cases are Reid v. Covert and US v. Verdugo-Urquidez.) But that’s not going to fly any more in the face of globalized rights consciousness.

The concern is general publics, not foreign government leaders. The latter should know how to protect themselves. I sure hope that the German government has Angela Merkel on a very secure phone now — the US government may no longer be eavesdropping, but lots of others, including sophisticated nongovernmental persons, may be. As Ian Hurd puts it with respect to the promise not to eavesdrop on foreign officials, “Breaking news: 35 people won’t be spied on, 7,119,999,955 will.”

Maybe not forever. We’re already seeing efforts to universalize data protection efforts against security surveillance. There’s this report from FP of a UN initiative:

Brazil and Germany today joined forces to press for the adoption of a U.N. General Resolution that promotes the right of privacy on the internet, marking the first major international effort to restrain the National Security Agency’s intrusions into the online communications of foreigners, according to diplomatic sources familiar with the push. . . .

Brazilian and German diplomats met in New York today with a small group of Latin American and European governments to consider a draft resolution that calls for expanding privacy rights contained in the International Covenant Civil and Political Rights to the online world. The draft does not refer to a flurry of American spying revelations that have caused a political uproar around the world, particularly in Brazil and Germany. But it was clear that the revelation provided the political momentum to trigger today’s move to the United Nations. The blowback from the NSA leaks continues to agonize U.S. diplomats and military officials concerned about America’s image abroad.

Expect to see more of this kind of activity in places like the treaty committees and among special rapporteurs, as well as on a bilateral/regional basis (think TPP and and TTIP) and in domestic legislation. Article 17 of the ICCPR supplies a basic hook by prohibiting “arbitrary or unlawful interference” with privacy. No way that this ends up as a specified hard norm any time soon, but an accretion of steps may well add up to an international norm against blanket data collection. Obviously you can’t simply transpose domestic requirements (warrants and the like) for enforcement-related surveillance against private persons, but going forward governments may have to satisfy some sort of individualized thresholds for listening in.


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