Foreign Intelligence Surveillance Act

Surveillance Diplomacy

By Ashley Deeks
Friday, July 17, 2015, 1:10 PM

Now that some of the dust has settled in the wake of the revelations about NSA and GCHQ surveillance of foreign leaders, it is a good time for the United States to engage in a bit of surveillance diplomacy.  In other words, U.S. experts should be having conversations in public fora around the world about the who, what, and why of domestic and foreign electronic surveillance.  Although not all of the ambiguity about U.S. law has been put to bed by the USA FREEDOM Act (see the ACLU's recently filed case here and the Second Circuit/FISC split here), the U.S. electronic surveillance landscape is now clearer.  That means that the U.S. Government is in as good a position as it ever will be to discuss its surveillance laws and policies with foreign journalists, academics, think tanks, and other actors who influence public opinion.

Why undertake surveillance diplomacy?  First, it could expose the disconnect between the perceived lawlessness of U.S. surveillance and the reality of the many, layered rules and oversight mechanisms that apply.  Second, it could expose the deficits of other nations’ systems in this regard.  Third, it could lay the groundwork for developing some basic procedural norms on the international plane, such as those discussed here.

DNI General Counsel Bob Litt has done excellent work in this regard, giving speeches at Brookings, SAIS, the Wilson Center, and the Aspen Security Forum, among other places, and participating in a Steptoe Podcast.  (Links to all of these are available here.)  But he is one person, and his public audiences have almost exclusively been inside the United States.  (He and his colleagues presumably have had conversations with their foreign counterparts, but the contents of those conversations have not made their way into the public discourse abroad.)  Further, having these conversations on a government-to-government basis is not enough.  These discussions should take place with the media, academics, students, the general public, and even major foreign technology companies.

Those engaging in surveillance diplomacy need to be well-versed in both the domestic and international law arguments for and against foreign surveillance.  They cannot just rely on simple talking points, but must be able to respond to questions and concerns in depth, while keeping the conversations at an unclassified level.  Surveillance diplomats also must be armed with a decent understanding of how other states' legal systems work, including the new laws that states such as France have enacted.  This would allow U.S. officials to better highlight the protections and oversight the United States has in place to guard against abuses.  To the extent that foreign intelligence services face fewer statutory restrictions and less oversight, that might prompt some uncomfortable conversations between foreign intelligence agencies, their overseers, and their publics.  That, however, is not a bad thing for the United States.

The conversations would not be easy, particularly because the United States will, for the foreseeable future, engage in robust foreign surveillance.  But this is a good opportunity for a genuine dialogue, at least within Western democracies that are close U.S. partners.  Who would conduct these conversations, in addition to Bob Litt?  If he gets confirmed, the State Department's new Legal Adviser, Brian Egan, would be one option.  The next NSA General Counsel offers another.  Surveillance diplomacy will require a heavy lift, but could pay off if done smartly.