The United States National Security Agency as a “Good Neighbor”? The US Review Group on Intelligence and Communications Technologies and the Surveillance of Foreigners

UPDATE: The New York Times reported that in a speech on January 17, 2014, US President Obama said that “he was taking the ‘unprecedented step’ of extending privacy safeguards to non-Americans, including requiring that data collected abroad be deleted after a certain period and limiting its use to specific security requirements, like counterterrorism and cybersecurity.’The bottom line,’ he said, ‘is that people around the world — regardless of their nationality — should know that the United States is not spying on ordinary people who don’t threaten our national security.’ The NYT added that “Mr. Obama said that new safeguards would limit the duration that the government can hold personal information about foreigners and restrict its use. While he acknowledged the United State’s responsibility to ask ‘tough questions’ about its technological capabilities, he made clear that foreigners overseas do not enjoy the same protections as U.S. citizens. ‘This is not unique to America,’ he said. ‘Few, if any, spy agencies around the world constrain their activities beyond their own borders.’”

These new safeguards are included in Presidential Policy Directive 28 Policies and Procedures (pdf)

See also NSA PUBLIC ANNOUNCEMENT 03 February 2015: Administration Releases Report on Presidential Policy Directive-28/Signals Intelligence Activities; NSA Releases Specific Procedures to Implement

Daniel Severson, American Surveillance of Non-U.S. Persons: Why New Privacy Protections Offer Only Cosmetic Change, 56 Harv. Int’l L. J. 465 (2015) (pdf)

On December 12, 2013 the US President’s Review Group on Intelligence and Communications Technologies submitted its report and recommendations concerning the National Security Agency’s surveillance practices. The report suggests reforms that would limit US surveillance of foreigners in respect of their right to privacy.

Recommendation 13 suggests, inter alia, that such surveillance, (1) be authorized by duly enacted laws or properly authorized executive orders;  (2) be directed exclusively at the national security of the United States or its allies; (3) not disseminate information about foreigners if the information is not relevant to protecting the national security of the US or its allies; (4)  not target foreigners located outside the US based solely on their political views or religious convictions; and (5) be subject to careful oversight and to the highest degree of transparency consistent with protecting the national security of the US and its allies.

Recommendation 14 provides that “in the absence of a specific and compelling showing, the US Government should follow the model of the Department of Homeland Security, and apply the Privacy Act of 1974 in the same way to both US persons and non-US persons.”

The reasons invoked for these recommendations are striking.

While acknowledging that the Fourth Amendment is not applicable to foreigners located outside the US, the report goes on to ask “how should” the US treat such foreigners. The report explains the robust protection of privacy granted to US citizens is heightened because it serves to protect the American political process. Interestingly, the report opines that the internal safeguards of US democracy have positive spillover effects, by helping to “promote and preserve democratic accountability across the globe.”

But the report quickly moves to acknowledge the right to privacy of others. It recognizes that

[T]here are sound, indeed, compelling reasons to treat the citizens of other nations with dignity and respect. As President Franklin Delano Roosevelt observed, the United States should be a “good neighbor.” Sometimes this is simply a matter of national self-interest. If the United States wants other nations to treat our citizens well, we must treat their citizens well. But there are other reasons for being a “good neighbor.”

In addition to pragmatic concerns of retaliation, fear of alienation of other nations, or the fracturing of the unity of the Internet, the report invokes the rights rhetoric:

Perhaps most important, however, is the simple and fundamental issue of respect for personal privacy and human dignity – wherever people may reside. The right of privacy has been recognized as a basic human right that all nations should respect. Both Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights proclaim that “No one shall be subjected to arbitrary or unlawful interference with his privacy. . . .” Although that declaration provides little guidance about what is meant by “arbitrary or unlawful interference,” the aspiration is clear. The United States should be a leader in championing the protection by all nations of fundamental human rights, including the right of privacy, which is central to human dignity.

If these recommendations are adopted, there would be three primary differences between the standards governing the acquisition of communications of US persons and foreigners: First, US persons could be targeted only upon a showing of probable cause, whereas foreigners could be targeted upon a showing of lower threshold of evidence (“reasonable belief”). Second, US persons could be targeted only if there would be a judicial warrant from the Foreign Intelligence Surveillance Court, whereas foreigners could be targeted without such a warrant, “but with careful after-the-fact review and oversight.” Third, the “minimization requirements” for retention and dissemination of communications of US persons would not extend fully to foreigners located outside the United States, but importantly, information collected about such persons would not be disseminated unless it is relevant to the national security of the US or its allies.

UPDATE: The UN Human Rights Committee criticized the United States for its surveillance policy as an infringement of Article 17 of the ICCPR (concluding observations, 22 April 2014)

It opines that the US “should: [t]ake all necessary measures to ensure that its surveillance activities, both within and outside the United States, conform to its obligations under the Covenant, including article 17; in particular, measures should be taken to ensure that any interference with the right to privacy complies with the principles of legality, proportionality and necessity, regardless of the nationality or location of the individuals whose communications are under direct surveillance;”

In response, the United States rejected the Committee’s reading of Article 17 ICCPR, citing its “longstanding position” that the  obligations under the Covenant apply only with respect to individuals who are both within the territory of the state and subject to its jurisdiction.