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David Cole on My “Failure of Imagination”

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Tuesday, November 12, 2013 at 7:18 PM

Over at Just Security, David Cole tweaks me for a “failure of imagination” for my piece yesterday wondering what he and Kenneth Roth mean by a worldwide right of privacy: Cole writes that “[Wittes] argues that since he can’t conceive of a warrant being required for spying, there must not be any global right of privacy. Indeed, he goes further to say that ‘I don’t even know what [privacy] means’ at the international level.”

I’m sorry my imagination is not up to snuff, but here’s the thing: Neither is Cole’s. Because while he criticizes me for writing off the privacy rights of non-US persons all over the world, he does not really answer my question of what a global privacy right that all nations should respect would look like.

He starts by admitting that the problem is hard:

I confess that working out the proper contours of a right of privacy on a global scale would be challenging. It’s hard enough to get the Democrats and Republicans in Washington to come to consensus these days, much less China, Russia, the US, Germany, and Venezuela.

He goes on to argue that “There’s nothing intrinsic to the right to privacy that is inherently limited to a nation’s borders, or to its citizens.”

He seeks to define privacy—very vaguely—as “the right not to be intruded upon by others—regardless of their identity.”

And he toys with the idea that the Foreign Intelligence Surveillance Act might be a model for a global privacy right:

In the Foreign Intelligence Surveillance Act, for example, we require the FBI to make individualized showings that a target is an agent of a foreign power before authorizing wiretaps and physical searches—as long as the target is here in the United States. Why couldn’t such a requirement apply to targets abroad? That would permit spying on persons who have useful intelligence information because of their status, but would protect ordinary citizens doing nothing wrong from obtrusive electronic monitoring.

But having posited this possible model, he immediately takes it back:

The point is not that the solution is necessarily to adopt FISA’s protections for US persons as a model for privacy-intruding intelligence gathering more broadly. FISA may not be protective enough, or it may be too protective.  The point is simply that it is possible to imagine a privacy right that extends beyond borders. I am not endorsing FISA as a solution; just noting that there is nothing unimaginable about extending its protections.

I confess I’m left very much where I started: With no idea, either procedurally or substantively, what it would mean to respect the privacy rights of everyone in the world while conducting espionage—except, perhaps, to not “intrude” on anybody. So while I don’t doubt that it is possible to imagine a worldwide privacy right that extends beyond borders, I still don’t think Cole has done so, beyond telling us that maybe such a right looks like FISA and maybe it doesn’t.

Then again, maybe my imagination is failing me again.

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