Obama’s NSA Reform: Foreigners Get Protections, Too
From the third paragraph of President Obama’s implementation of surveillance reforms (Presidential Policy Directive/PPD-28).
[O]ur signals intelligence activities must take into account that all persons should be treated with dignity and respect, regardless of their nationality or wherever they might reside, and that all persons have legitimate privacy interests in the handling of their personal information.
The primary operative provision of the directive, section 2, adopts limitations on bulk surveillance data that “are intended to protect the privacy and civil liberties of all persons, whatever their nationality and regardless of where they might reside.” Likewise for section 4 and the safeguarding of personal information. (Protections for non-citizens are much more prominent in the operative instrument than in Obama’s Justice Department speech today, which unsurprisingly played to domestic politics more than international sensitivities, though it is there, too.)
So Obama bought into a key Review Group recommendation. Whether or not one thinks the overall policy will suffice to rein in the NSA (a mixed verdict, at best), the fact that it applies to citizens and non-citizens alike strikes me as a pretty big deal – can’t think of an obvious precedent. As the biggest player on the global landscape, it will certainly contribute to the crystallization of an international right to privacy.
It also reduces the importance of the Supreme Court’s 1990 ruling in Verdugo-Urquidez, which found non-US citizens outside the United States to enjoy no Fourth Amendment rights (and which no doubt supplied the key legal authority for NSA programs aimed at foreigners). That doctrine becomes less consequential as the net supplied by other sources of law rises below rights located in the Constitution. The absence of constitutional rights no longer translates into no rights. This is another front on which sovereigntist victories in the Supreme Court will be hollowed out over the long run by forces beyond its control.