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An Ally or a Spy Target, But Not Both

Jameel Jaffer,
Director, Knight First Amendment Institute
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October 25, 2013

The piece below was first published as part of the New York Times Room for Debate featureIf We’re Spying, Are We Still ‘Allies’?which discussed: After surveillance revelations, Brazil, France and Germany may be having second thoughts about the U.S.: In what sense are they “allies”?

The revelation that the National Security Agency is engaged in dragnet surveillance of American allies is just another indication, if one were needed, that America’s surveillance laws are in desperate need of reform. As we’ve seen, those laws give the N.S.A. broad authority to spy on people living in the United States. They give the agency even broader authority to spy on anyone living abroad. The N.S.A. appears to be using that authority aggressively — even exceeding it.

The N.S.A.’s defenders argue that foreigners living outside the United States do not have constitutionally protected privacy rights. This argument is a distraction. The United States is a signatory to the International Covenant on Civil and Political Rights, which obliges it to respect the privacy rights of non-Americans as well as Americans. And whatever the constitutional rights of Berliners and Parisians, our surveillance policies should reflect our values. Americans once rebelled because King George III authorized warrantless searches of their houses. Now an American military agency is carrying out the digital equivalent of such searches the world over.

Our foreign-intelligence surveillance laws were written in an era in which surveillance technology was relatively primitive, most people made international phone calls only rarely, and no one had access to anything resembling the Internet. We need to revisit these laws. The N.S.A.’s surveillance authority should be narrowed and subjected to stronger oversight by Congress and the courts. Basic information about its activities should be made public so that Americans can assess whether those activities serve not just intelligence interests but the larger interests of the country as well. Ultimately there is no way to justify the N.S.A.’s boundless surveillance dragnet. At home and abroad, the N.S.A. should focus on those believed to present real threats, not on entire populations.

On Monday morning, the Inter-American Commission on Human Rights, which is part of the Organization of American States (OAS), will hold a first-ever hearing on the NSA’s mass surveillance and its impact on human rights in the Americas. The hearing is being held at the request of the ACLU, and panelists invited by the ACLU will discuss the rights to privacy and free speech, U.S. obligations to protect these rights for both U.S. citizens and foreign nationals, and the inadequacy of legal protections for whistleblowers in the U.S. national security sector. The U.S. delegationto the OAS will appear at the hearing, and will be asked to justify for the first time on the international stage the United States’ dragnet surveillance and its treatment of Edward Snowden under U.S. and human rights laws. The U.N. Special Rapporteur on the Right to Freedom of Opinion and Expression, Frank La Rue, will also speak. The hearing will be webcast starting at 10:15 a.m. ET here.

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