Dear Privacy Board: It’s Us, Earth's Other 95%

There are seven billion people in the world, and 95 percent of them live outside the United States. We know from dozens of revelations from the last year that few, if any, are immune from the watchful eyes of the National Security Agency.

Yet in its latest report on surveillance, the government’s independent Privacy and Civil Liberties Oversight Board focused almost exclusively on the rights of people inside the United States. Here are five reasons why the PCLOB should have defended the rights to privacy and free expression for everyone – including the 95 percent:

• Privacy is a human right.  As President Obama has recognized, privacy is not just guaranteed by the U.S. Constitution, it is a basic human right of everyone around the world.  In ratifying the International Covenant on Civil and Political Rights, the U.S. government assumed legally binding obligations to protect this right. In failing to defend it and articulate legally defined limitations on global spying, the PCLOB abdicated a core responsibility.
• Our government claims authority for surveillance “concerning” nearly every country on Earth. This week the Washington Post reported that the National Security Agency sought authority to intercept information “concerning” 193 countries — every country in the world but the “Five Eyes” of Britain, Canada, Australia and New Zealand. The Foreign Intelligence Surveillance Court, which operates with excessive secrecy, signed off. Ignoring U.S. international obligations to protect privacy rights, the Privacy Board has given a green light to the NSA to continue conducting surveillance that implicates nearly the entire world.
• Almost any person outside the U.S. could potentially be targeted based on “foreign intelligence” value. Section 702 of the FISA Amendments Act, which the Privacy Board reviewed in its new report, authorizes the “targeting” of non-U.S. citizens or residents reasonably believed to be located outside the U.S .for “foreign intelligence” purposes.  But the government’s definition of “foreign intelligence” sweeps so broadly that it potentially encompasses the communications of vast numbers of non-citizens. That could include communications of many, not just persons it considers foreign agents, engaging in criminal activity, or connected, even remotely, with terrorist activities.  
• The internet should be free – for everyone. The government’s powerful surveillance apparatus, coupled with its expansive claims of authority for global surveillance, threatens the way all of us use and view the internet. When people know that they may be under watch, they act differently. Online freedom of expression – ironically a “foreign policy priority” for the United States – becomes stifled. Worse still, the U.S. government could share the millions of emails, Gchats and Skype calls it collects with foreign governments, putting at risk journalists, human rights activists and dissenters worldwide who face persecution from their home governments based on their beliefs and the views they express online.
• The world is watching. In its report, the PCLOB described “spirited debate” at the international level over the right to privacy. Indeed, lawyers and activists around the world are seeking to hold their governments accountable for surveillance activities that we knew little about until Edward Snowden’s revelations. (This “spirited debate,” for example, is what led the German government to say it would end its contract with Verizon.) The PCLOB should be a leading voice in this international debate, not a member of the audience. Though PCLOB suggested it would address the issue more in its future report on Presidential Policy Directive-28 — including the President’s direction to sync up some protections for citizens and non-citizens, to the extent feasible – human rights protections are not a matter of policy. They are binding law. In the meantime, PCLOB has squandered a valuable opportunity to encourage a U.S. government approach to surveillance that respects the human right to privacy. That, in turn, would have positively influenced global trends on these issues at a critical juncture.

The United States has been a world leader in promoting and developing the internet. Now it’s time to lead the world and ensure the internet remains safe and free.