Last week, I was supposed to testify before the Privacy and Civil Liberties Oversight Board, but wasn’t able to because of a flight delay. My written statement is here. My panel was asked to answer two questions.
1. Does International Law Prohibit the U.S. Government from Monitoring Foreign Citizens in Foreign Countries?
I said “no.” The U.S. government has long taken the position that the relevant treaty–the International Covenant on Civil and Political Rights, which includes a right to privacy–does not apply to conduct abroad, based on article 2(1), which says “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant.” Some NGOs and other countries disagree, but even if they’re right, it’s hard to imagine that surveillance targets like foreign citizens or government officials, fall within U.S. “jurisdiction.” And then the ICCPR doesn’t define “privacy,” and the treaty has never been understood to block monitoring of this type, as far as I know. That is why the Germans have recently proposed a new treaty, an optional protocol to the ICCPR, that would limit surveillance.
2. Should the United States Afford All Persons, Regardless of Nationality, a Common Baseline Level of Privacy Protection?
“No” again. Why should it? No other country that has the capacity to engage in surveillance respects the privacy of Americans. If nothing else, read this statement by Christopher Wolf, who describes the foreign surveillance laws and policies of other countries. Here is an excerpt about French law:
The 1991 [French] law is comparable to FISA in that it provides the government with broad authority to acquire data for national security reasons. Unlike FISA, however, the French law does not involve a court in the process; instead, it only involves an independent committee that only can recommend modifications to the Prime Minister. In addition, France’s 1991 law is broader than FISA in that it permits interceptions to protect France’s “economic and scientific potential,” a justification that is lacking in FISA.