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

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