Yesterday the panel established by President Obama to review the surveillance practices of the NSA released its final report. One important dimension relates to the possible privacy protections of non-US citizens abroad. You can find the Review Group’s report HERE.
The report does not elaborate on the international human rights law obligations of the US (as a matter of law) but it draws inspiration from them and comes pretty close to the correct conclusions. Recommendation 13 quoted below (p. 151) comes close to a proper permissible limitations test. What is missing is proportionality, though as necessity is present (see “exclusively” in item 2) even proportionality can be inferred. Some of the reasoning quotes international law standards on privacy, even if presented in the context of policy considerations (democracy and reciprocity). The points articulated on pp. 155-156 in the report can be seen as a turn from policy to principle and can (perhaps optimistically) be read as an aspiration to respect foreigners’ privacy also/just because it happens to be a human right (please see quote #2, below).
QUOTE #1: ‘Recommendation 13’ (on page 29 of the report) –
“We recommend that, in implementing section 702, and any other authority that authorizes the surveillance of non-United States persons who are outside the United States, in addition to the safeguards and oversight mechanisms already in place, the US Government should reaffirm that such surveillance:
(1) must be authorized by duly enacted laws or properly authorized executive orders;
(2) must be directed exclusively at the national security of the United States or our allies;
(3) must not be directed at illicit or illegitimate ends, such as the theft of trade secrets or obtaining commercial gain for domestic industries; and
(4) must not disseminate information about non-United States persons if the information is not relevant to protecting the national security of the United States or our allies.
In addition, the US Government should make clear that such surveillance:
(1) must not target any non-United States person located outside of the United States based solely on that person’s political views or religious convictions; and
(2) must be subject to careful oversight and to the highest degree of transparency consistent with protecting the national security of the United States and our allies.”
QUOTE #2: (pp. 155-156 of the report) –
“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.”