NSA Surveillance Since 9/11 and the Human Right to Privacy
86 Pages Posted: 21 Sep 2013 Last revised: 1 Apr 2014
Date Written: August 31, 2013
Since shortly after 9/11, if not earlier, the National Security Agency (NSA) has been collecting massive amounts of data about American citizens and permanent residents, ostensibly with the aim of preempting future terrorist attacks. While the NSA’s program has invited substantial scholarly attention, specifically concerning its compliance with the United States Constitution and various domestic statutes, the academic debate about its merits entirely omits one crucial fact: the United States is also legally obliged to protect a human right to privacy, as codified in Article 17 of the International Covenant on Civil and Political Rights (ICCPR). This Article seeks to eliminate the blind spot caused by that omission, illustrating the relevance of human rights for assessing the legality and propriety of NSA surveillance. It argues that even under conservative assumptions about the scope of the NSA program and the coverage of the ICCPR, there is good reason to think that the program violates the covenant. At the very least, as this detailed case study of the NSA program demonstrates, more clarity from the Human Rights Committee on the right to privacy is essential in a world characterized by increasing government surveillance.
Section I of this Article provides a brief history of domestic spying in the United States, leading up to and through the passage of the Foreign Intelligence Surveillance Act of 1978 (FISA). FISA constituted the first major legislative effort to regulate the electronic surveillance of American citizens or permanent residents within the United States for foreign intelligence or international counterterrorism purposes, and Section I concludes by outlining the key provisions of this landmark statute. Section II traces the chronology of revelations about the NSA program and relevant statutory developments, starting with the original disclosure of the program in December of 2005 and ending with revelations made in August of 2013. Section III of the Article explains why Article 17 of the ICCPR applies with full force to the United States, while Section IV unpacks some of the language of Article 17 to illustrate why its provisions apply to the activities of the NSA. Finally, Section V explores several ways in which the NSA program appears to violate the provisions of Article 17.
Keywords: privacy, NSA, surveillance, FISA, FAA, PATRIOT Act, human rights, ICCPR
Suggested Citation: Suggested Citation