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More on Wittes and the Rights of Others

The debate on the privacy rights of foreign nationals goes on, at least in the blogosphere. Ben Wittes responds to my post here on Lawfare today by objecting that I have not yet set out the precise contours of what an right of privacy for foreign citizens abroad might look like. In his initial post, he argued that a right to privacy for foreign citizens was unimaginable, both because rights must be limited to those who make up a social compact, and because spying by its very nature requires intrusions on privacy. I responded that rights need not be understood merely as deriving from a social compact – see, e.g., the human rights movement of the last half century — and that in any event social compacts can and often do extend rights to those not formally part of the compact. He offers no further defense to the social compact thesis, but continues to insist that spying and privacy don’t mix, and therefore that privacy for foreigners is a nonstarter. He criticizes my response for failing to provide a fully worked out conception of what the right would look like.

It’s true that I have not proposed a specific treaty on privacy (though I have noted that we actually already have one, in the International Covenant on Civil and Political Rights, a fact Wittes also ignores). But setting out a fully developed right to privacy in the digital age seems more than a bit premature at the moment. I have merely been arguing that we need to rethink our untested assumption that the only privacy rights worth caring about are our own. The point of my post was to refute Wittes’s contention that such a transnational right to privacy was literally unimaginable. I pointed to the Foreign Intelligence Surveillance Act, which defines a right to privacy for US citizens and some foreign citizens – those residing here permanently — not as the only possible solution, but merely as an example demonstrating that it’s not impossible to both respect privacy rights and authorize intrusions on privacy for legitimate intelligence gathering purposes.

Wittes does not explain why his is unable to conceive of a right to privacy for others, even as he does not question a right to privacy for himself. If US law enforcement and intelligence agents can pursue their goal of keeping us secure at home while honoring the privacy rights of US citizens and residents, why is it inconceivable that they could pursue the same goal while respecting the rights of foreigners abroad? FISA already requires them to respect the rights of US citizens abroad, so what is so unthinkable about respecting the rights of others as well?

Wittes appears to believe it’s impossible because privacy and espionage are like oil and water. They just don’t mix. But that overstates the case. Privacy interferes with spying, to be sure, but no more than privacy interferes with law enforcement. It would be easier to catch criminals if we dispensed with all privacy rights. But we recognize that there are legitimate interests on both sides of the scale, and that some balance therefore needs to be struck. Privacy is not an absolute (and nor, for that matter, are law enforcement and intelligence), so trade-offs are possible. In the law enforcement realm, we protect privacy by authorizing intrusions when the state has individualized suspicion of wrongdoing; under FISA, we similarly authorize intrusions on privacy when the state has individualized suspicion that an individual is an agent of a foreign power or a member of an international terrorist organization. That approach does not preclude spying. It merely focuses it on those for whom there is some basis to believe they have foreign intelligence information. And if we can live with that requirement at home, for investigations of terrorism, espionage, sabotage, serial murders, and foreign intelligence gathering, I just don’t see why Ben Wittes finds it inconceivable that we might live with it abroad.

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About the Author

is a professor at Georgetown University Law Center. Follow him on Twitter (@DavidColeGtown).