Obama’s NSA Reform: Foreigners Get Protections, Too

by Peter Spiro

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


5 Responses

  1. We  will spy on foreigners just like we did before, only now we will do it with dignity and respect.

  2. The word “treated” is an interesting word in connection with treatment of people abroad, as opposed to communications and data.  Moreover, the ICCPR only applies abroad re: persons in the actual “power or effective control” of the U.S., not their communications or data. And note that the NSA program has not been abandoned, basically only limited in certain ways.  There may or may not be interesting changes in relevant international law — will the PRC agree? the UK? Germany? Australia? Canada? the Russian Mob?

  3. and note the qualifiers: “take into account,” “legitimate,” “personal,” “appropriate,” etc.
    Section 2: “The United States must consequently collect signals intelligence in bulk in certain circumstances….” 

  4. Jordan, 

    See the Heyns report, however, which argues that ‘any positive action by a State, on its own territory or that of another State, must be carried out in compliance with its human rights obligations under all applicable rules of international law.’
    This follows recognition that drones  ‘enable a State to perform targeted killing without exercising effective control over territory and without having the individual in custody.’ In so many words, the Heyns report argues that the United States cannot escape the purview of human rights law (the ICCPR included) by arguing that the jurisdictional scope of the treaties do not capture drone strikes. The same could be said for overseas surveillance.
    Of course, the Heyns report is hardly the last word on the subject, but there is a big push for the extra-territorial application of human rights. Whether that makes or breaks the human rights regime is so far unsettled, but it is a development that can hardly go ignored.

  5. Thanks Tyler.  I am aware of the interconnect (between surveillance and self-defense targeting issues) but you are the first other person to mention it as far as I know.  I have written that human rights law clearly is generally universal (contrary to the Bush-Cheney Admin.), but the next question becomes who has a protectable human right outside the territory of a state (or occupied territory, its vessels, etc.) and, according the HR Comm. under he ICCPR and the CAT Comm. under the CAT, the answer is: those who are within the actual “power or effective control” of the state. See http://ssrn.com/abstract=1520717 and http://ssrn.com/abstract=1718548
    The information will  be in the power or control of the U.S., but not most persons who are abroad.

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