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The New US “Red Line” – No Privacy Rights For Foreigners

Colum Lynch has a fascinating blog at Foreign Policy based on a leaked memo reflecting the United States’ latest “redline”:  that no privacy rights be recognized for foreigners abroad.  The UN is considering a resolution on respecting internet privacy, pressed by Brazil and Germany – for good reason.   According to Lynch, the US is publically supportive of the resolution, which has no binding effect. But it’s nonetheless working hard behind closed doors to amend it to remove any references that might suggest that it has to respect the privacy rights of foreigners overseas.  The leaked memo, entitled “Right to Privacy in the Digital Age – U.S. Redlines,”  states in its first sentence that the US’s primary objective is to remove suggestion that such obligations [to respect privacy rights] apply extra-territorially.”

In some sense, this is not surprising.  The NSA’s stock in trade is to invade foreign citizen’s privacy overseas.  Just yesterday The Guardian disclosed an agreement between NSA and its UK counterpart, GCHQ, to allow the NSA to collect, analyze, and store phone, email, and internet data on UK citizens not suspected of any wrongdoing.   And as we’ve learned again and again from Edward Snowden’s leaks, digital technology has empowered the NSA to do this globally to an extent that was unimaginable a decade ago (and indeed, unimaginable until Edward Snowden showed us it was so).

But this double standard is deeply disturbing, and has troubling echoes of another double standard asserted by the US in the “war on terror.”  The Bush administration notoriously argued  that the prohibition on cruel, inhuman, and degrading treatment that is contained in the Convention Against Torture did not apply to foreigners overseas – so that it could authorize CIA interrogators to engage in waterboarding and other obviously cruel, inhuman, and degrading tactics.  When this secret interpretation became public, Congress gave President Bush the most resounding defeat of his term, enacting the McCain Amendment in the Detainee Treatment Act, and affirming that the right not to be subjected to cruel, inhuman and degrading treatment applied to all human beings — not just those in the United States or holding a US passport.

As I have argued here on Just Security previously (for example, here and here), the digital age has made it possible for all of us to communicate across borders with infinitely greater ease.  But it has also made it possible for national security services  – and especially, for now, the NSA – to spy on individuals’ private communications in lands far from their own.  If privacy is going to survive into the digital age, it is essential that we begin to recognize that protecting an individual’s privacy against his own government is not sufficient.  The preservation of privacy, a value everyone professes to hold dear,  requires safeguards against foreign as well as domestic snooping.  This doesn’t mean an end to foreign surveillance.  No country bars all surveillance in the name of privacy. But it would put limits on the kind of suspicionless dragnet surveillance that the NSA seems to favor these days. And that, apparently, is the US’s new “red line.”

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About the Author

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