23 December 2013

“Everyone does it”: NSA Spying and International Law

Seemingly lost in the daily revelations uncovering massive levels of National Security Agency (NSA) surveillance – wiretapping and metadata collection alike – is the issue of who is responsible for these violations of the human right to privacy. The quick and ready answer is the United States and certainly no other country is anywhere near as well placed (or, apparently, as intent) on gathering information on what literally billions of people in the world are doing each day – whether it be who they talk to and email, where (physically) these individuals might happen to be at any given time and who is with them, and finally, what people say, believe and perhaps even think.

Yet, although the U.S. should shoulder the lion’s share of (moral) blame and (legal) responsibility, matters are not nearly as simple as this. For one thing, one of the common refrains, at least by defenders of such surveillance programs, is that “everyone” does it, which seems to suggest that the United States is no different from any other country.

Under this scenario, the United States spies on Germany – but Germany also spies on the United States. In that way, if all are responsible no single country could, or should, bear special responsibility. Setting aside the question whether there is any likelihood that the German government was able to eavesdrop on the conversations of Presidents Bush and Obama over the past decade in the same manner in which the NSA listened in on Chancellor Merkel, still there is at least some logic in this formulation. In addition, perhaps governments really do not have any legitimate expectations of privacy. Thus, the real problem comes when governments spy on ordinary citizens who have shown absolutely no proclivity towards, or sympathy with, international terrorism.

Yet, beyond the obvious issue of privacy, NSA spying raises some important questions concerning international law itself. One involves the meaning of “state sovereignty” in the sense that the United States has been able to systematically operate in a host of other countries over an extended period of years and has done so with impunity. The second way that the principle of state sovereignty gets called into question is that the domestic governments of these spied upon countries apparently made little, if any, attempt to protect the privacy rights of their own citizens. The point is that this is nothing like how state sovereignty is generally conceptualized.

Beyond this, NSA spying casts serious doubt on the dominant interpretation of two of the most vexing terms in international law: “jurisdiction” and “territory.” With regard to the former, there has been a repeated tendency to restrict the meaning of this term to nothing more than “effective control” over a particular individual or an area of land. Yet, the various NSA spying programs show how limited this view of jurisdiction happens to be. At a minimum, we now know that the United States has exercised some form of jurisdiction – there is no other term for it – over at least half of the people living on this planet.

A country’s “territory” does not change. However, what needs to change is our notion that a human rights violation – privacy in this case – necessarily occurs in the country where a person happens to be located. Rather, a person who is in one state can send an email message that can be intercepted in another state and this data can be transferred to additional states. Where, exactly, has the human rights violation taken place?

But to return to the issue of state responsibility, it is important to note that the U.S. has not acted alone. For one thing, some states have served as listening posts for the NSA, oftentimes from their embassies in foreign lands. In addition, data has been shared across national borders, especially when domestic constraints, or at least the fear of domestic backlash, has restricted states from spying on their own citizens. The easy solution, or so it seems, is to rely on the U.S. to do the spying for these states, much in the way that under extraordinary rendition programs the United States has outsourced much of its dirty work to other countries.

It is by no means clear how responsibility under these various scenarios would be assigned or the forum where such claims could be pursued. However, perhaps the real question is whether NSA spying will serve as yet another example of the impotency of international law to address important “global” problems, or whether the unseemly and illegal practices of NSA surveillance can only be reined in by this law.

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