Should Foreign Nationals Get the Same Privacy Protections under NSA Surveillance–or Less (or More)?

By Ryan Goodman

When it comes to mass surveillance, should foreign nationals in foreign territory be afforded the same privacy protections as one’s own nationals? According to a recent report on “mass digital surveillance for counter-terrorism” by the UN Special Rapporteur Ben Emmerson, the United States is currently in violation of a fundamental principle of equality by affording foreign nationals abroad fewer privacy protections (paras. 42-43). Some NSA programs, for example, purposefully collect and analyze the content of electronic communications of foreigners abroad, but not of US nationals at home or abroad. The UN Special Rapporteur states that such differential treatment is patently unlawful:

“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.”

In this post, I interrogate what I call the “parity principle” that Emmerson (and others) have put forward.

I outline reasons to provide foreign nationals abroad less privacy protections than one’s own nationals. And, I outline reasons to provide foreign nationals abroad more (or qualitatively different) protections.

In short, the best answer, as a matter of law, is far more complicated than a superficial parity principle suggests. And the next frontier of thinking about foreign surveillance and privacy rights would benefit from a deeper analysis. The following is my attempt at a modest contribution to that conversation. Continue Reading »

http://justsecurity.org/16797/foreign-nationals-privacy-protections-nsa-surveillance-or-or-more/#more-16797