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This Note explores why, as a matter of law and policy, the U.S. government has not extended more privacy protections to foreigners subject to signals intelligence activities conducted outside the United States.
Edward Snowden’s unauthorized disclosures generated significant international pressure on the United States to reform its surveillance practices, including extending more privacy protections to foreigners. The U.S. government responded by increasing transparency and offering policy reforms. However, most of the changes relating to non-U.S. persons are cosmetic; they largely formalize current practices and incentives, making real changes only at the margins. Several possible reasons explain the U.S. government’s approach:
the cost of surveillance on the U.S. economy may be exaggerated; the diplomatic costs have already declined;
the argument that U.S. government surveillance violates international human rights law is tenuous; and alternative policies are not clearly superior to the status quo. Therefore, while affording non-U.S. persons fewer protections may entail some costs, those costs are uncertain or declining, and national security interests as well as political and pragmatic considerations create powerful incentives to maintain the status quo.
Signals collection for foreign intelligence purposes provides not just information to detect and thwart international terrorism and espionage, but also information valuable for the conduct of foreign affairs. It appears that in order to facilitate these goals, the U.S. government decided to maintain the distinction between U.S. persons and non-U.S. persons and their different levels of privacy protection.
