The Privacy Rights of Non-U.S. Persons in Signals Intelligence

97 Pages Posted: 8 Nov 2017 Last revised: 15 Nov 2017

See all articles by Eric Manpearl

Eric Manpearl

The Robert S. Strauss Center for International Security and Law; The University of Texas School of Law; Lyndon B. Johnson School of Public Affairs

Date Written: November 6, 2017

Abstract

The U.S. faced a tremendous backlash from foreign governments and publics following Edward Snowden’s unauthorized disclosures of classified information. President Barack Obama took the unprecedented step of declaring that “all persons have legitimate privacy interests in the handling of their personal information” regardless of nationality or residence in Presidential Police Directive 28 (PPD-28). PPD-28 amended U.S. signals intelligence (SIGINT) procedures to limit dissemination and retention of non-U.S. persons’ personal information. PPD-28 is the first ever extension of privacy protections to foreigners. U.S. privacy protections have traditionally not been concerned with the privacy interests of foreigners as these individuals are not part of the U.S.’s social contract. Further, there is no basis in international human rights principles or international law for universal privacy rights that constrain legitimate U.S. foreign intelligence efforts targeting non-U.S. persons outside of the United States. Other western nations have not provided privacy protections for foreigners and have actually passed robust, less privacy protective, statutes since PPD-28 was issued.

PPD-28’s constraints on U.S. SIGINT enacted to mollify partner government concerns have real security costs that must be taken into account. The new SIGINT restrictions are now connected with important U.S. economic interests, though, and this equity must also be taken into account when analyzing PPD-28’s extension of privacy protections to non-U.S. persons. The U.S. must thoroughly analyze the security costs imposed by PPD-28’s SIGINT restrictions and determine whether these risks are worth the possible foreign policy benefits and economic gains of Privacy Shield. Ultimately, the U.S. should rescind PPD-28’s expansion of privacy protections to non-U.S. persons because of its cost to U.S. intelligence capabilities, which are critical to protecting U.S. national security interests, the American people, and the U.S. Homeland.

Keywords: PPD-28, signals intelligence, surveillance, privacy, intelligence, national security, Fourth Amendment, social contract theory, foreign policy, international law, economic interests, Privacy Shield, ECJ, ECHR, ICCPR, UDHR

Suggested Citation

Manpearl, Eric, The Privacy Rights of Non-U.S. Persons in Signals Intelligence (November 6, 2017). 29 Florida Journal of International Law (2018 Forthcoming). Available at SSRN: https://ssrn.com/abstract=3066161

Eric Manpearl (Contact Author)

The Robert S. Strauss Center for International Security and Law ( email )

2315 Red River Street
Austin, TX 78712
United States

The University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

Lyndon B. Johnson School of Public Affairs ( email )

2300 Red River St., Stop E2700
PO Box Y
Austin, TX
United States

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