'We Only Spy on Foreigners': The Myth of a Universal Right to Privacy and the Practice of Foreign Mass Surveillance
51 Pages Posted: 27 Jul 2017 Last revised: 17 Dec 2017
Date Written: October 5, 2017
The digital age brought with it a new epoch in global political life, one neatly coined by Professor Philip Howard as the “pax technica.” In this new world order, government and industry are “tightly bound” in technological and security arrangements that serve to push forward an information and cyber revolution of unparalleled magnitude. While the rise of information technologies tells a miraculous story of triumph over the physical constraints that once shackled mankind, these very technologies are also the cause of grave concern. Intelligence agencies have been recently involved in the exercise of global indiscriminate surveillance, which purports to go beyond their limited territorial jurisdiction and sweep in “the telephone, internet, and location records of whole populations.” Today’s political leaders and corporate elites are increasingly engaged in these kinds of programs of bulk interception, collection, mining, analysis, dissemination, and exploitation of foreign communications data that are easily susceptible to gross abuse and impropriety. When called out about any of these programs, policy makers often respond to their constituencies with a shrug and a smile: we only apply these programs to foreigners, you have nothing to worry about.
While the human rights community continues to adamantly uphold the myth of a universal right to privacy, in actuality the pax technica has already erected an alternative operational code, one in which “our” right to privacy and “theirs” are routinely differentiated. One higher set of standards and protections is provided for those within the territory of the state, and a lowered set is handed to those abroad. This distinction is a common feature in the wording of electronic communications surveillance regimes and the practice of signals intelligence collection agencies, and it is further legitimized by the steadfast support of the layman general public. Nonetheless, a liberal defense of this distinction is non-existent in the literature, as human rights scholars continue to oppose it arguing that it reflects in-group biases and violates the principle of non-discrimination.
In this piece I try to make the liberal case for the distinction, justifying, in a limited sense, certain legal differentiations in treatment between domestic and foreign surveillance. These justifications, as I show in the piece, are grounded in practical limitations in the way foreign surveillance is conducted, both generally and in the digital age more specifically. I will further make a controversial claim: that in fighting this absolutist battle for universality, human rights defenders are losing the far bigger war over ensuring some privacy protections for foreigners in the global mass surveillance context. Accepting that certain distinctions are, in fact, legitimate, creates an opportunity to step outside the bounded thinking of one-size-fits-all human rights standards for all surveillance practices, and begin a much needed conversation on what a uniquely tailored human rights regime might look like in the foreign surveillance context. This piece, thus, makes a first attempt at sketching out such a tailored framework, with the hope of bridging the divide between privacy scholars and national security practitioners.
Keywords: Surveillance, Human Rights, European Court of Human Rights, International Human Rights Law, Privacy, Extraterritoriality, Bulk Interception, International Law, National Security, Intelligence, Non-Discrimination
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