June 22, 2008

 Minority report

So the Democratic Congress has caved in to Republican fear-mongering on illegal surveillance (ht Glenn Greenwald). Barack Obama has distanced himself from the legislation in a carefully calibrated way that falls well short of outright condemnation of the whole package, though he is at least firmly opposed to the worst element, blanket retroactive immunity for the telcos. (Update: Jack Balkin explains why.)

It's striking that even the most gung-ho opponents of the legislation like Greenwald agree on one thing: the offence is lawless surveillance of Americans; there's no problem at all in continuing the NSA's limitless right to spy on mere foreigners.

Allow this foreigner to dissent. Here's my minority report of one. Thesis:

The invasion of the privacy of any human being by the the agencies of any government should be subject to law, due process, and proportionality. The public interest in gathering information about crimes and threats to national security has always to be balanced against the private interest in privacy, which is both a a fundamental human right and a bulwark of the public interest in sustaining democratic institutions.

The converse, exceptionalist view that only Americans should have enforceable rights is a repellent outgrowth of imperial arrogance. I'm a Brit, we've been there before. The founders of the United States were universalists who understood the First Amendment as an operational embodiment of the rights of man within the tradition of the English common law, not a unique revelation to a chosen people. It shouldn't be necessary, but let me rehearse the standard arguments.

  • Privacy is a fundamental right, affirmed in Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights, to both of which the USA has subscribed. It is also affirmed in a host of other international treaties, including the ECHR (Article 8) and national constitutions. It is therefore both both a specific international treaty obligation and part of the "opinions of mankind" for which Washington recommended "a decent respect", which translates into some duty of comity on US courts and legislators.

  • The institutionalised panic of the Bush administration in response to 9/11 has been a huge moral victory for Osama bin Laden and his movement, demonstrating daily to a billion Muslims the shallowness of America's proclaimed values. Climbing out of this pit of contempt onto the moral high ground will involve more than just the return to a normal rule of law which Obama promises: it will call for demonstrative and exceptional virtue, as with Germany after Nazism. His administration must therefore go the extra mile in its concern with the rights of foreigners, especially Muslims.

  • The technological advantage currently enjoyed by the USA in electronic surveillance is bound to erode with time. It would already be illusory to think that the governments of Russia, China, France, Israel and India have no ability to spy on the communications of American citizens of interest to them. As in other fields, it is in the USA's interests today, as it has been since 1945, to try to lock some of its advantages and principles into an international order. This can only be done through a strategy of alliance-building, comity and outreach which is incompatible with a Hobbesian policy of always getting one's bug in first.

I'm not suggesting that foreigners should enjoy equal protection to citizens, in the USA or anywhere else. The terrorist threat is real and no-one should object to aggressive surveillance of al-Qaeda members, financiers and recruiters. The problem, as with Communism in its day, is how far you extend the net towards the millions of vague sympathisers. As a minimum, intrusion should require some evidence: perhaps not much, but pure fishing strikes me as wrong as well as inefficiently noisy. An automatic search would pick up this blog post; should I reasonably expect to have my emails and web searches read from now on?

Another difficult dimension is the relationship with foreign governments. These span a continuum from regular cooperation with a government agency in a country with strong privacy rights, like Switzerland or the Netherlands, acting under the supervision of its own courts, to intelligence operations against the government agencies of adversarial countries like Iran, Sudan and North Korea, whose domestic legal order is largely alien. The calls on semi-allies like Pakistan and Russia are genuinely difficult.

Nor is it self-evident that the FISA court as it stands is the best body to exercise a rule-of-law check on the surveillance of foreigner-to foreigner communications, but it's an expert and trusted body and a sensible place to start.

Since the legislation going through Congress is a reactionary mess, a fresh start is clearly needed. I propose that it include some minimal regulation of surveillance of foreigners:

* recognition of the principle of universal privacy rights that can only be breached for cause (principally national security and law enforcement);
* appropriate supervision by a qualified and trusted body of the adequacy of the causes claimed, on a scale of standards below those applicable to citizens but never trivial;
* an automatic wave-through of surveillance carried out at the request of a law-enforcement agency of a country with strong privacy protection, acting under judicial supervision;
* a ban on pure fishing;
* statistical reporting by categories of operation.

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