How not to tap

On August 27,President Obama met in the White House Situation Room with the five members of his newly appointed Review Group on Intelligence and Communication Technologies. The five members were: a former member of the National Security Council,a former acting director of the CIA,a former director of the office of information and regulatory affairs,a former chief counsellor for privacy in the office of management and budget,and me.

The immediate backdrop for the president’s appointment of the review group was a series of unauthorised disclosures of classified information involving foreign intelligence surveillance by the National Security Agency. Our charge was to submit a formal report by December 15,advising the president on how the United States can employ its information collection capabilities in a way that protects our national security and advances our foreign policy,while at the same time respecting our commitment to privacy and civil liberties.

Although our report,“Liberty and Security in a Changing World”,and our 46 recommendations focus primarily on the privacy interests of American citizens,here I will focus on those recommendations that relate specifically to the privacy interests of non-Americans.

The question,quite simply,is to what extent a nation should accord non-citizens the same privacy protections it recognises for its own citizens? At one level,it is easy to say that every nation should accord all persons the same rights,privileges and immunities that it grants to its own citizens. But,of course,no nation follows such a policy. Nations naturally — and appropriately — see themselves as distinct communities with special obligations to the members of their own community.

Thus,the central question we addressed was: What is the minimum degree of privacy protection the US should grant to non-citizens? The review group concluded,in short,that the US should grant greater privacy protection to non-citizens than we do under existing law.

Under American law,the government generally is prohibited from intercepting the contents of private telephone calls and emails unless a judge first issues a warrant based on a finding that there is probable cause to believe that an individual is committing,has committed,or is about to commit a crime. Section 702 of the Foreign Intelligence Surveillance Act (FISA),however,provides that if the target of foreign intelligence surveillance is (a) not a US citizen who is (b) outside of the US,the NSA can legally intercept her phone calls and emails as long as it has reasonable grounds to believe that she is using the targeted phone number or email to communicate foreign intelligence information relating to international terrorism,nuclear proliferation or hostile cyber activities.

There are,therefore,two differences between the way the US treats American citizens and the way it treats non-American citizens who are outside the US. When dealing with a non-American citizen who is outside the US,one,the standard is “reasonable grounds to believe” rather than “probable cause”,and two,no judicial warrant is required. On the other hand,the FISA requires extensive after-the-fact review of the implementation of Section 702 by inspectors general,the department of justice and congressional oversight committees to ensure that it is being used appropriately.

According to the NSA,Section 702 “is the most significant tool in the NSA’s collection arsenal for the detection,identification,and disruption of terrorist threats to the US and around the world.” Our review confirmed this assessment. Indeed,after analysing an array of classified information,we concluded that the section plays “an important role” in the US’s effort “to prevent terrorist attacks across the globe”.

The question remains,however,whether the section achieves its goals in a way that unnecessarily sacrifices individual privacy. As President Franklin D. Roosevelt once observed,the US should be a “good neighbour”. Sometimes being “a good neighbour” is a matter of national self-interest. If the US wants other nations to treat our citizens well,we must treat their citizens well.

But there are other reasons for being a “good neighbour”. If the US is too aggressive in its surveillance policies under Section 702,it might trigger serious economic repercussions for American businesses,which might lose their share of the world’s communications market because of a growing distrust of their capacity to guarantee the privacy of their international users. Indeed,recent disclosures have generated considerable concern along these lines.

Moreover,unrestrained American surveillance of individuals who are not US citizens might alienate other nations,fracture the unity of the internet and undermine the free flow of information across national boundaries. This,too,is a serious concern that cuts in favour of restraint.

Perhaps most important in the review group’s judgement,however,is the simple and fundamental issue of respect for personal privacy and human dignity — wherever people may reside. The right to privacy has been recognised 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 US,we concluded,should be a leader in championing the protection by all nations of fundamental human rights,including the right to privacy.

With these interests in mind,the review group has put forth several important recommendations concerning the use of Section 702. We recommended that,in addition to the safeguards and other oversight mechanisms already in place,the US should affirm that such surveillance under Section 702: one,must be directed exclusively at the national security of the US or our allies; two,must not be directed at illegitimate ends,such as the theft of trade secrets or obtaining commercial gain for domestic industries; three,must not disseminate information about any non-US citizen if the information is not relevant to protecting the national security of the US or our allies; four,must not target any non-US citizen based solely on that person’s political views or religious convictions; five,must be subject to the highest degree of transparency consistent with protecting the national security of the US and our allies; and six, must be undertaken in conformity with the federal privacy act,which safeguards individual privacy in the maintenance and use of government records.

Although these protections do not give non-citizens outside the US the same protections as American citizens,it was the judgement of the review group that the differences in treatment are warranted by the special obligations a government owes to its own citizens. Moreover,in the judgement of the group,the affirmation of these six safeguards would satisfy the US’s obligation to ensure that no person “shall be subjected to arbitrary or unlawful interference with his privacy” and should be embraced by all nations as guiding principles.

The writer,Edward H. Levi Distinguished Service Professor of Law at the University of Chicago,is member of the President’s Review Group