Analysis: Does America Owe Foreigners Any Privacy?

Domestic spying has been the understandable focus of U.S. citizens and policymakers as Edward Snowden's disclosures about the NSA made international headlines. But the leaks have given us a fuller understanding of foreign surveillance, too. Abroad, the NSA operates with less oversight and fewer legal constraints. Is it behaving in accordance with America's interests and values? For the first time, Americans have the ability to make an informed judgment. 

The panel that President Obama convened to study the NSA has already made suggestions for reforming the way that it behaves overseas. Among the "significant steps" they urged to protect the privacy of foreigners: Surveillance of non-Americans should be directed exclusively at protecting national security; shouldn't attempt to secure commercial gain; shouldn't target anyone "based solely on that person's political views or religious convictions;" shouldn't disseminate information about non-U.S. persons unless it protects national security; and "must be subject to careful oversight" and "the highest degree of transparency" consistent with protecting national security. The panel concluded that absent a specific, compelling showing, the Privacy Act of 1974 should apply to foreigners. 

For Charles C.W. Cooke of National Review, a British citizen who has written eloquently about the dangers of the NSA's domestic spying, these reforms go too far, "according to foreigners bulwarks to which they have no claim." Efforts to do so are "the product of fluffy one-world types who haven’t so much taken a libertarian exception to national-security overreach as folded the revelations into a toxic Weltanschauung that perceives America to be a global bully and force for ill," he argues. "If President Obama indulges this instinct, he will be abdicating his most elemental responsibility as the chief executive of the national government: to protect Americans from those who would do them harm."

After summarizing his substantial, strongly held objections to the NSA's domestic activities, he concludes that the problem is "an agency that is tasked with spying overseas has turned its attention to the homeland," not that the NSA is doing the job assigned to it. "The NSA isn’t just allowed to spy broadly outside of the United States," he writes. "That is precisely what it should be doing. The legal and moral questions that critics have posed to the NSA make sense only within the United States."

As a foreign national, he adds, he certainly isn't claiming that only Americans possess privacy rights. He just believes that, as a matter of law, "only two sets of people—American citizens and those within the country’s borders—are entitled to the legal protection of the Constitution," and that as a practical and moral matter

... a foreign power’s violating your privacy and your own government’s doing so are by no means the same thing. For the vast majority of people, the practical importance of one’s secrets being obtained by one’s own government considerably outweigh the importance of their being obtained by a foreign power.

These are not ridiculous arguments. A government spying on its own citizens really does present unique dangers; the NSA's activities abroad are far less legally dubious than its mass spying on the communications of American citizens; and foreign intelligence really is a prudent and legitimate thing to gather. Additionally, I find the presidential panel's suggested ban on foreign spying "based solely on that person's political views or religious convictions" to be puzzling. If an influential Saudi cleric's religious conviction is that all infidels ought to be killed, or if a rising Chinese official's political view is that America should be expelled from the Pacific islands by force, aren't those legitimate reasons to watch them?

I'd nevertheless go a lot farther than Cooke would to protect foreigners from current and future excesses of the U.S. surveillance state, both for their sake and for ours. The United States has an inherent right to defend itself from foreign threats. Beyond that, it has no moral claim to intrude into the private affairs of foreigners, and doing so in certain ways could certainly make it a force for ill. It's perhaps more useful to speak specifically about what I'd allow and what I'd forbid than to attempt an articulation of first principles, which I'm still working out. 

But my policy preferences are grounded in these general beliefs:

• That indiscriminate mass surveillance is morally wrong, if not dystopian, and will grow increasingly problematic as technology advances.
• That the power to spy on anyone in the world tends, like all power, to corrupt, making self-imposed constraints prudent.
• That the U.S., a hegemon that frequently interferes in the affairs of foreign countries, has a special responsibility to guard against violating rights with surveillance.
• That the people who run the U.S. national-security state are, like all humans, incapable of morally, prudently, and secretly manipulating foreign political events. They should refrain from trying if only for practical reasons.
• That surveillance professionals tend to irrationally over-collect data, erroneously believing it's necessary even when it's actually overwhelming them.
• That a world free of indiscriminate mass surveillance is in our enlightened national interest, as are universal privacy rights that enable self-governance.
• That spying on leaders in countries that plausibly threaten our national security is the most legitimate form of foreign surveillance, and should be least constrained.
• That spying on regular people in other liberal democracies is the least legitimate use of foreign surveillance, and ought to be the most severely constrained. 
• That few secrets are kept forever, and the likelihood that a given kind of spying will ultimately be made public ought to inform whether or not it is done.
• That it's in America's long term interest to preserve an Internet that affords users privacy.

I'd much prefer constraining the NSA, in accordance with those beliefs, than giving the foreign surveillance agency carte blanche to spy abroad however its officials see fit. How would I formulate the limits of foreign surveillance? I don't have language worked out that could be dropped into a piece of reform legislation, but I can lay out some tentative hypotheticals that fall on both sides of my line. I make no comment on their plausibility. They're offered as thought experiments.

Compromising all computer hardware sent to North Korea so that much of what's typed by its government is available to the United States? I've got no objections. Doing the very same thing to South Korea? That should be forbidden.

Eavesdropping as a Chinese general discusses his country's intentions toward Japan and their broader strategy in the Pacific? Kudos. Eavesdropping on a random sampling of typical Chinese city-dwellers to gauge public opinion about America? That should be forbidden. 

Spying on British political candidates in order to surreptitiously leak damaging personal information to the British press, facilitating the rise of the party friendliest to U.S. interests? That should be forbidden. Gathering blackmail material on German bureaucrats to facilitate the awarding of lucrative bids to U.S. companies? Forbidden. 

Mass surveillance on foreign nationals that is turned over to foreign governments?

Forbidden.

Conducting surveillance of David Frum's family members in Canada in hopes of pressuring them to pressure him to write favorable articles about the Obama Administration? 

Forbidden.

Constructing an exhaustive database that contains all emails sent and received in France for a five-year period, just in case it comes in handy later for some unknown reason?

Forbidden.

(Even if we never abused it, are we confident that we could prevent the data from being hacked or leaked? Bradley Manning and Edward Snowden suggest otherwise.)

Whether or not you agree with my take on all these hypotheticals, the notion of unconstrained NSA spying on foreigners would seem to permit all manner of mischief. And an insistence that the NSA spy on foreigners only to safeguard national security, as the presidential panel proposed, doesn't seem to me a constraint that would unduly burden the United States or threaten our safety or prosperity, nor does it seem premised on the notion that America is a nefarious global bully. Rather, it seems aimed at preventing us from being corrupted by too much power—a determination to avoid becoming bullies.

Before concluding, I want to address one more argument that appears in bothEric Posner's case against privacy rights for foreigners, as well as in Cooke's article. "A government gains advantage from obtaining information about a person only if it can use force against that person," Posner erroneously argues. Cooke, making the same mistake, writes:

The American federal government can and might do all sorts of immediate harm to me; the government of China, on the other hand, cannot. If a rogue official in the United States takes exception to my politics, he can make my life hell: inviting the government to track my whereabouts, ordering frivolous arrests, tying me up in endless audits and frivolous bureaucracy, and even sending a SWAT team to my house. If the Chinese politburo finds me objectionable (and I certainly hope it does), it can do very little of practical importance. Moreover, and this I think is the key point, if China tries to actually hurt me, I have distance, borders, and the American government’s considerable arsenal standing in the way. If someone at home tries to hurt me, I have little individual recourse. 

If I were an agent of the Chinese politburo intent on hurting Cooke, I am confident that I could make his life rather unpleasant, presuming I had access to five years of his telephone metadata, his text messages, his emails, and his digital address book! Most people would be hesitant to entrust that much information to a close friend with a mischievous streak. Posner's claim ought to be truncated as follows: "A government gains advantage from obtaining information about a person." Force need never be used to harm a person's livelihood, reputation, marriage, or dignity. 

Information is usually enough.