Amid the burst of outrage over NSA spying on the communications of foreign leaders and citizens is the inevitable hand-wringing over how to stop the NSA from violating people’s privacy. Germany has proposed updating an international human rights treaty to include a right to digital privacy. Kenneth Roth, the executive director of Human Rights Watch, argues that the U.S. government should accept “a global obligation to protect everyone’s privacy.” David Cole, a law professor at Georgetown, argues that privacy is a “human right,” which the United States is obligated to respect in all countries. But an international privacy right would weaken U.S. interests without providing benefits in return, and would be of little value to the foreigners it is supposed to protect.
Cole’s major claim is that Americans gain if foreign governments cannot spy on Americans—and if we don’t spy on them, they won’t spy on us. But the premise is doubtful, and the conclusion does not follow. Mass surveillance—where emails and other communications are vacuumed up, stored in databases, and then searched for keywords—doesn’t harm anyone in itself. The problem only arises when the information is used to detain, interrogate, or harass people. Chinese, French, and Russian intelligence agents do not have the time or inclination to harass random Americans, nor the capability as long as Americans remain in the United States. When people cross borders, international law already protects them from legal harassment. Piling on laws that ban this kind of surveillance would not add meaningful protection.
That means foreign governments can’t offer anything of value to us by refraining from engaging in mass surveillance, so there is no room for a trade of the type Cole describes. We all benefit from our governments spying on foreigners. The real danger arises when my government spies on me, and their governments spy on them. A right to privacy that aims to protect foreigners does nothing about this danger, which can be addressed only by constitutional law within each country.
Cole’s argument could be recast as a more modest claim about the harm of certain types of surveillance: economic espionage, for example, or spying on leaders like Angela Merkel, if it sows distrust. But then there is a case-by-case question: Do mutual gains accrue to the United States and a specific other country from a joint cessation in spying? We might in the end decide that we should not tap Merkel’s cellphone because it annoys her and she only ever talks about sausages and the latest soccer scores anyway, while the Germans can offer us something valuable in return for a promise not to spy—for example, information that their own spies have obtained. Deals of limited scope may be justified between certain countries—like our agreements with the United Kingdom and the other three of the “Five Eyes.”
But the United States would gain little or nothing from making such deals with most countries. The United States is richer than other nations and has invested more in espionage, and the U.S. government also benefits in this arena from its influence over American Internet companies because of its regulatory authority over them. As long as we retain these advantages, we will usually gain more from spying on other countries than we lose from being spied upon, and so we do not profit from a deal in which all sides refrain. This advantage will not last forever, but if we gave it up today, in the hope that some future technological leader like China will follow our impressive example of self-restraint and refrain from spying on us, then we would be suckers. That’s never been how states act.
Unlike Cole, Roth sees a human right to privacy as a universal moral commitment, not as the possibly beneficial result of dealmaking between governments. In human rights circles, government actions count as rights violations if they affront human dignity, which everyone shares. Germany’s proposal to update a human rights treaty reflects similar thinking. Under Germany’s proposal, all countries would be protected from NSA (and other foreign) spying, regardless of whether they can offer us something in return for that protection.
When people think of human rights, they typically think of rights not to be tortured, detained without reason, separated from their family, or killed by security agents. Privacy is more complicated and contested. Privacy rights vary greatly across countries; many governments spy on their own citizens without compunction. Citizens in many countries accept mass surveillance as an acceptable price of security.
Suppose that the NSA collects the emails of foreigners and conducts searches of them for keywords. Occasionally a false positive turns up, and an analyst reads someone’s email to his lover, therapist, or doctor, ascertains that the email contains no information that identifies terrorists or other security threats, and deletes it. The writer of the email never finds out, and the analyst of course has no idea who this person is. Has a human right been violated? It is hard to identify an affront to human dignity, or even a harm, any more than if a police officer overhears a snatch of personal conversation on the bus.
But, yes, it is possible to argue that the NSA might misuse the information to inflict harm on foreigners. It might blackmail critics of the United States or harass suspected terrorists. There is, in fact, no evidence of such behavior, and it is easy to see why. If the NSA did blackmail foreigners, then its activities would eventually become public even without leaks as victims complained to their governments. This would compromise operational secrets and cause diplomatic turmoil. And such malfeasance would violate international law even without the addition of a human right to digital privacy.
And this demonstrates precisely the way in which privacy differs from other values. A government gains advantage from obtaining information about a person only if it can use force against that person. Foreigners are protected by national boundaries. That is why it makes sense to give constitutional privacy protections to citizens, and not to foreigners who live overseas. The call for an international right to digital privacy will go nowhere, because it makes no sense.
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