An International Legal Framework for Surveillance

79 Pages Posted: 5 Sep 2014 Last revised: 10 Nov 2017

See all articles by Ashley Deeks

Ashley Deeks

University of Virginia School of Law

Date Written: September 1, 2014

Abstract

Edward Snowden’s leaks laid bare the scope and breadth of the electronic surveillance that the U.S. National Security Agency and its foreign counterparts conduct. Suddenly, foreign surveillance is understood as personal and pervasive, capturing the communications not only of foreign leaders but also of private citizens. Yet to the chagrin of many state leaders, academics, and foreign citizens, international law has had little to say about foreign surveillance. Until recently, no court, treaty body, or government had suggested that international law, including basic privacy protections in human rights treaties, applied to purely foreign intelligence collection. This is now changing: several U.N. bodies, judicial tribunals, U.S. corporations, and victims of foreign surveillance are pressuring states to bring that surveillance under tighter legal control.

This article tackles three key, interrelated puzzles associated with this sudden transformation. First, it explores why international law has had so little to say about how, when, and where governments may spy on other states’ nationals. Second, it draws on international relations theory to argue that the development of new international norms regarding surveillance is both likely and essential. Third, it identifies six process-driven norms that states can and should adopt to ensure meaningful privacy restrictions on international surveillance without unduly harming their legitimate national security interests. These norms, which include limits on the use of collected data, periodic reviews of surveillance authorizations, and active oversight by neutral bodies, will increase the transparency, accountability, and legitimacy of foreign surveillance.

This procedural approach challenges the limited emerging scholarship on surveillance, which urges states to apply existing — but vague and contested — substantive human rights norms to complicated, clandestine practices. In identifying and valuing new, objectively verifiable, neutral norms, the article offers a more viable and timely solution to the perils of foreign surveillance.

Keywords: electronic surveillance, international law, foreign surveillance, Edward Snowden, espionage, spying, right to privacy

Suggested Citation

Deeks, Ashley, An International Legal Framework for Surveillance (September 1, 2014). Virginia Journal of International Law, Vol. 55, p. 291, 2015; Virginia Public Law and Legal Theory Research Paper Series 2014-53. Available at SSRN: https://ssrn.com/abstract=2490700

Ashley Deeks (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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