On Ryan Goodman's "Interrogation" of the "Parity Principle"

By Benjamin Wittes
Monday, November 3, 2014, 2:00 PM

Over at Just Security, Ryan Goodman analyzes UN Special Rapporteur Ben Emmerson's claim that states owe the same privacy protections to non-nationals abroad as to their own citizens at home in conducting broad surveillance programs. Emmerson had written, “The Special Rapporteur thus considers that States are legally obliged to afford the same privacy protection for nationals and non-nationals and for those within and outside their jurisdiction. Asymmetrical privacy protection regimes are a clear violation of the requirements of the Covenant.” Goodman responds by "interrogating" what he calls Emmerson's "parity principle," listing a few reasons to tolerate lesser protections and some reasons to insist on greater---or different---protections for non-nationals overseas than for citizens or non-citizens subject to a state's territorial jurisdiction.

He writes,

Three Reasons to Provide Foreign Nationals Abroad Less Privacy Protections

1. Limited means of information detection: A state has fewer resources available to detect potential threats to its national security from foreign nationals abroad compared to its ability to detect such threats within its own borders or by its own nationals. Accordingly, in many cases electronic surveillance may be a necessary and more valid tool specifically in the foreign context. (Peter Margulies makes a similar point over at Lawfare.)

2. Threat of the surveillance state: A major concern about surveillance is the threat to citizens from their own government infiltrating their private lives and gathering information about them. . . . But such concerns about democratic stability are, at the least, most relevant and most acute in the domestic context—and not so much in dealing with a state applying it surveillance powers to foreigners abroad.

3. Enforcement authority: One of the concerns about government surveillance is the punitive sanctions that the state can levy on the basis of the information it discovers about someone. A government, however, has far less ability to detain, prosecute, sentence to prison, or seize the property of foreign nationals abroad compared to individuals within its own territory or its own nationals. . . . .

Three Reasons to Provide Foreign Nationals Abroad More (or Qualitatively Different) Privacy Protections.

. . .

1. Political process check: In a system of domestic surveillance, the public has a greater ability to put pressure on their political representatives if the laws intrude too significantly on their privacy rights and interests. Not so for foreign nationals---the French citizen in France doesn’t get to vote or, more importantly these days, spend money in US elections. Foreign surveillance lacks these national-level political checks.

2. Ability to notify (accessibility and foreseeability): One of the key requirements of international human rights law is the notice afforded by public and transparent surveillance laws. But even if laws are public and transparent, it is difficult to expect a French citizen to be aware of all the surveillance laws of all countries that might over time be intercepting his communications. (The UN Special Rapporteur makes a similar point in his report (para. 43).)

3. Ability to remedy: Under international human rights law, a key safeguard against abuse is the ability of victims of a violation to obtain a remedy. . . . It is generally considerably more difficult for a foreign national in a foreign country to obtain a remedy from the US government compared to individuals residing inside the United States or to US nationals.

There is a little something missing from Goodman's weighing of the equities here: state practice (all of it) and the history of espionage (all of it). No state has ever sought to apply the same privacy rules to overseas espionage as it does to domestic collection or collection against its own citizens---save those states that don't believe in restrains on either.

Indeed, there is a weird unrealism about the earnest call here to "interrogate" the "parity principle" as though the parity principle has any relationship to the world we actually live in. The entire architecture of U.S. surveillance law is built on the idea that there is no parity principle. It's built on the idea of shielding U.S. nationals from what are the accepted norms of overseas surveillance activity. It's built on the idea that the U.S. government cannot view the U.S. population the way intelligence services routinely view foreign nationals in other countries---which was summed up well in this famous Gary Larson "Far Side" cartoon on "How Birds See the World."

Assume for a moment there were a parity principle that states actually took seriously. What would that look like? Would NSA need to go to the FISA Court before opening a tap on Vladimir Putin? Goodman's discussion is limited by its terms to circumstances of "mass surveillance," but why? If foreigners abroad are entitled to the same privacy rights from the U.S. government as U.S. nationals, why isn't that true as well of basic old gumshoe spying? Why shouldn't the CIA need a FISA physical search warrant before it goes into an Al Qaeda safe house in Pakistan?

The truth is that Goodman does not interrogate the parity principle quite (pardon me) coercively enough. If you take this principle seriously, you believe that virtually all of espionage is illegal.