Can You Hear Me Now?: Private Communication, National Security, and the Human Rights Disconnect

Abstract

Revelations regarding widespread and extraterritorial U.S. governmental surveillance and data collection and the complicitous role of private corporations have sparked debate in the United States and abroad whether the U.S. surveillance program is lawful under U.S. domestic and international law.

This article addresses the question whether global human rights law adequately protects private communications of individuals from state and non-state actor eavesdropping, data collection, and data mining engaged in for national security purposes. Relevant human rights law is universal in reach despite a serious misunderstanding of prior U.S. Administrations and a putative U.S. reservation to a global human rights treaty. Although still insufficiently understood, human rights law can reach non-state actor aiders and abettors of human rights violations as well as state actor perpetrators and facilitators, and both types of actors have participated in extraterritorial intelligence gathering that has impacted on individual and group privacy. However, not all persons are protected from extraterritorial infringement and there is a well-recognized test regarding who is entitled to extraterritorial protection that precludes protection for most persons. The lack of extraterritorial protection for most persons results in one form of human rights disconnect. Another disconnect results from the nature of relevant substantive rights. The human right to private communication is not absolute. For those who have such a right, significant and far-reaching limitations exist that will often assure the propriety of various forms of national security intrusion, especially in contexts of self-defense and war. Having identified why extraterritorial human rights protection is generally lacking, the article suggests a modest policy-serving reform.

Keywords: accommodation, arbitrary, communication, Constitution, corporation, data, data mining, eavesdropping, effective control, email, espionage, extraterritorial, Fourth Amendment, human right, ICCPR, intelligence, jurisdiction, NSA, national security, privacy,reasonable, rights of others, satellite