The Important, Justifiable and Constrained Role Of Nationality In Foreign Intelligence Surveillance

This Lawfare post summarizes a longer essay we are publishing today with the Hoover Working Group on National Security, Technology and Law. Our essay addresses whether governments ever have a justified basis for treating targets of surveillance differently, in any way, based on nationality. This issue is of general importance and has become particularly important in the current legal debates about whether the U.S. has “adequate” protection of personal privacy under EU law. Under U.S. surveillance law, there are often stricter privacy protections for “U.S. persons” (U.S. citizens and permanent residents) than for non-U.S. persons. As we presented our research at several conferences, almost all U.S. experts agreed that this approach is normatively defensible. By contrast, EU legal experts expressed concern that the two-tier approach may constitute discrimination based on nationality, and is questionable under EU law and data privacy principles. If EU courts were to find the two-tier approach unlawful, a practical implication is that it could provide the basis for a broad ruling prohibiting transfer of personal data to the U.S.

Our essay fills a notable gap in prior writing, and shows compelling justifications for allowing nationality to matter for surveillance and protection of freedom of expression rights. We also assume that any such differential treatment based on nationality is constrained. A nation cannot lawfully torture persons simply because they have a different nationality. International human rights law limits how a government can and should act toward others; one cannot treat others differently simply because of their nationality. In addition, we sharply distinguish between our discussion of the possible limited uses of nationality for surveillance purposes, on the one hand, and recent trends, on the other hand, to invoke nativism or nationalism in politics. Such trends are a far cry from the reinforcement of democratic society that our essay seeks to support and foster.

In this initial work in our larger project comparing U.S. surveillance laws and practices to other countries’, we compare the U.S. and Germany. We examine Germany because it is an important democracy within the EU, known for strict privacy protection, while facing similar challenges regarding protecting rights and democracy while also protecting against national security threats. In our analysis, we define surveillance as the government’s access to and gathering of data about a person (the “target”). We distinguish between three relevant ways that surveillance rules can differ in ways related to nationality.

First, U.S. and German surveillance can be conducted for law enforcement or foreign intelligence purposes, and the difference matters. As the European Fundamental Rights Agency has documented, a clear majority of EU member states have different rules for law enforcement and foreign intelligence surveillance.

Second, rules depend on the location where the surveillance occurs—whether the collection occurs within the country or outside of it. U.S. and German surveillance rules differ based on the location of collection. The lawfulness of this approach was upheld in September, 2018 by the European Court of Human Rights in its Big Brother Watch v. UK decision, finding specifically “that any difference in treatment based on geographic location was justified.”

Third, and of the greatest focus of the essay, the rules vary depending on whether the targets of surveillance are part of the polity. For instance, U.S. law provides stricter protections under certain laws for surveillance of U.S. persons (citizens or permanent residents) than for non-U.S. persons, and German law does the same for Germans. That practice in Germany is subject to legal challenge, with one non-government organization reportedly planning litigation that argues that German surveillance law “implies discrimination against individuals without a German passport which is incompatible with the German Basic Law.” At this time it is not clear whether the challenge will be filed, and if filed and successful, on what grounds.

Stricter protection for U.S. persons has received considerable criticism, such as from European Union officials in connection with negotiation of the EU/U.S. Privacy Shield. Countries that apply stricter standards for surveillance of members of their own polity, such as the U.S. and Germany, have been condemned as practicing invidious discrimination. One version of the criticism, the “universalist” approach, supports a legal rule that the same surveillance standard should apply to all persons globally and argues for a universal human right to be free from unjustified surveillance. In the words of United Nations Special Rapporteur on the right to privacy, Joseph Cannataci, “when it comes to surveillance carried out on the Internet, privacy should not be a right that depends on the passport in your pocket.” Marko Milanovic has similarly stated in the surveillance context that “distinctions based on nationality alone would seem hard to justify.”

Our essay respectfully differs with that conclusion. At least where there are baseline human rights protections in how a country conducts surveillance towards all persons—in other words where the protections that flow from the rule of law such as “effective judicial review designed to ensure compliance with provisions of [the] law”—applying somewhat stricter standards for surveillance based on target nationality has a number of strong justifications.

Possibly the most compelling justifications are to preserve democracy, while maintaining the rule of law. There are special and significant risks to democracy and the rule of law that result from a country’s surveillance of its internal political opposition and the free press. The history of Nazi Germany, the U.S.S.R. and East Germany show how the state used surveillance to identify dissent and target the press as central strategies for political oppression. Recent expansions of surveillance power in Russia, Turkey and Venezuela similarly illustrate aggressive actions against the press, the free Internet, and political opposition, with the consequent erosion of the rule of law.

Differing rules based on nationality also exist to protect democracy directly. As an initial point, democracies characteristically discriminate in the right to vote based on nationality—those who are part of the nation can vote, and foreigners cannot. More broadly, the United States, Germany and other countries set limits on campaign expenditures for foreigners, compared to broader rights for those in the country to participate in the election. These campaign-related restrictions on foreigners provide a basis for law enforcement or national security surveillance of foreigners suspected of violating those laws.

The essay thus explains how a two-tier approach, instead of reducing fundamental rights, can serve the bedrock constitutional principles of democracy and the rule of law. Surveillance of nationals and others with a close connection to the domestic policy poses a special threat to the political opposition and free press of a country, both of which play crucial roles in limiting abuses of state power. Surveillance of persons outside the polity, by contrast, does not similarly implicate this risk to a nation’s democratic institutions. Preventing a slide into authoritarianism is a compelling reason for extra-strict protections against surveillance of a nation’s political opposition and free press.

A second justification for differential surveillance arises depending on the context of the surveillance—such as foreign intelligence and counter-intelligence, foreign affairs, foreign adversaries and international armed conflict—each of which can alter the analysis of what type of surveillance is proper. For example, without surveillance how can one detect an imminent invasion, enforce economic sanctions or promote nuclear non-proliferation? This point has been made forcefully by Tim Edgar, who worked with the American Civil Liberties Union before becoming a senior official in the U.S. intelligence community for civil liberties issues. Based on his experience, Edgar found a compelling case for having different standards for different contexts, notably between protecting domestic civil rights and democracy, contrasted with foreign intelligence. As a further practical matter, even if the U.S., Germany, France, or the U.K. chose to apply the same rules to all surveillance contexts, it seems unlikely that other countries such Russia or China would follow suit in practice.

In sum, the essay addresses: (1) three ways nationality can matter to surveillance; (2) reasons for stricter rules for law enforcement and domestic collection; (3) reasons for different rules based on the location of collection; (4) the universalist critique of surveillance laws based on nationality; and (5) reasons that can justify stricter surveillance rules based on nationality. These reasons have not been assessed either by the Court of Justice for the European Union nor by the European Court of Human Rights, which in 2018 addressed numerous other foreign intelligence surveillance issues in both Big Brother Watch v. UK and Centrum för Rättvisa v. Sweden. Our longer essay concludes, under both the U.S. and European legal traditions, that there are important and hitherto unarticulated reasons why nationality can be an important and justified, although constrained, part of surveillance regimes.

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