Eric Posner Argues Foreign Citizens Have No Right to Privacy from U.S. Surveillance

Keep Spying on Foreigners, NSA

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.