Even More on the Privacy and Civil Liberties Oversight Board Hearing: Why International Law Won’t Matter Much for NSA Spying

I was fortunate to participate in a discussion held at a hearing of the Privacy and Civil Liberties Oversight Board today in Washington D.C. I say “participate in a discussion” because it was not like giving testimony to a congressional hearing where the congressman make speeches and ask questions unrelated to your testimony.  Rather, it was closer to a mini-oral argument with five judges asking you questions about difficult legal issues (luckily, there were three other panelists though to field most of the questions).  The members of the PCLOB are all engaged and asked tough questions of me and of my fellow panelists. (I think C-SPAN will have video of our panel posted here)

The written testimony that was submitted (as well as  comments from the general public) can all be found here at the Regulations.Gov website. I want to flag for this blog’s readership the day’s last panel, which focused on international and transnational legal issues related to the NSA’s Section 702  surveillance program.  Three members of that panel (former State Dept. Legal Adviser John Bellinger, Human Rights Watch’s Laura Pitter, and the Max Planck Institute’s Ulrich Sieber) tackled the ICCPR’s applicability to overseas surveillance as well as the applicability of rules of customary international law.  (Video can be viewed here).  For those who don’t have the patience to watch the video or view the transcript, I live-tweeted the panel here).

Let me just add my two cents on the issues in this panel: Based on the questions, I don’t think the majority of the members of the PCLOB are convinced that international law does, or even should, constrain U.S. surveillance under Section 702.  They are also unimpressed with the complaints of foreign governments, most of whom have similar overseas surveillance schemes but with fewer oversight mechanisms.  The only concern that seemed to bother the Board was the fact that U.S. companies selling information technology overseas are being tarred with the NSA label, making it harder for them to compete in foreign markets.  These are just my impressions, mind you, but I wouldn’t be surprised if the final PCLOB report on Section 702 gives short shrift to international law issues.  (By the way, I would expect the opposite in their treatment of the Fourth Amendment, however).

Anyway, something to keep an eye on….