Should U.S. Law Protect the Privacy of Foreigners Abroad?

By Orin Kerr
Friday, November 1, 2013, 12:04 AM

United States privacy law traditionally has only protected the privacy of those in the United States and U.S. citizens abroad. Over at Just Security, David Cole argues that this should change. Privacy is a human right, he argues, and U.S. law should protect the privacy of foreigners all around the world. David offers three pragmatic reasons for his approach, but I don't find his arguments persuasive.

First, David argues that other countries will only respect the privacy rights of U.S. citizens if our government respects the privacy rights of theirs:

[T]he reality is that we are all foreigners from the standpoint of every other nation. And while at the moment the NSA may be at the forefront of technological surveillance capacity, other nations are not likely to be far behind. How would we feel if we had recently learned that France – or China – was collecting data on millions of Americans’ communications, or directly monitoring President Obama’s cell phone?

I would see the latter as a major security concern, but it certainly wouldn't be news that they are trying. Consider the reaction of a former French intelligence official to the disclosures of U.S. spying on the French:

France spies on the US just as the US spies on France, the former head of France’s counter-espionage and counter-terrorism agency said Friday, commenting on reports that the US National Security Agency (NSA) recorded millions of French telephone calls.

Bernard Squarcini, head of the Direction Centrale du Renseignement Intérieur (DCRI) intelligence service until last year, told French daily Le Figaro he was “astonished” when Prime Minister Jean-Marc Ayrault said he was "deeply shocked" by the claims.

“I am amazed by such disconcerting naiveté,” he said in the interview. “You’d almost think our politicians don’t bother to read the reports they get from the intelligence services.”

David next argues that respecting the rights of foreigners will end up helping protect U.S. privacy, too:

[W]e are all much more likely to be engaged in international communications than ever before. The Internet has erased national borders to a significant extent. It is as easy to read the latest news from the BBC, The Guardian, or Le Monde as it is to read the New York Times or the Washington Post. We can Skype with a friend in Glasgow as easily as our parents in Chicago. Should all bets be off simply because our communications cross national borders? Indeed, as many foreigners have learned, on the Internet you may not even know that your communication has crossed national borders, because a domestic communication may well be routed through another country without your knowing it.

I think this argument misfires my mixing up two questions. How U.S. privacy law should protect U.S. citizens in their international communications is a different question from whether U.S. privacy law should protect foreigners abroad. For example, I argue in a draft article that the border search exception to the Fourth Amendment does not apply to purely electronic transmission. If courts agree with me, then no, all bets aren't off for U.S. citizens when their communications cross the border. But that doesn't shed light on what protections should apply for foreigners abroad.

David's third argument is that foreign surveillance leads to bad public relations:

If we engage in practices that incur the ire of large swaths of the public in foreign countries, we are much less likely to find the cooperation we need from their governments, or from the people themselves. The people themselves are often the best sources of intelligence. But if the people come to resent the US because it is spying on them without just cause, they are much less likely to provide intelligence. And they are much more likely to object to their governments sharing information with us as well.

This argument boils down to a utilitarian cost/benefit question. Are the security benefits of a spying program, minus the security costs of triggering resentment if disclosed, discounted by the likelihood of that disclosure, overall a net positive? David would need to present some kind of argument for why that isn't the case, and he does not offer such an argument in his essay.