Foreign Surveillance and Anti-Discrimination: The Justifications for Applying Different Safeguards for Extraterritorial Surveillance

ByAsaf Lubin.

In March 2015, 10 human rights NGOs ranging from Amnesty International to ACLU, and from Privacy International to Liberty, filed an application with the European Court of Human Rights (ECtHR) challenging the United Kingdom’s surveillance regime under the Regulation of Investigatory Powers Act 2000 (“RIPA,”) which has since been replaced by an expanded legislation called the Investigatory Powers Act 2016 (“IPA.”) The case relies on the Snowden revelations and concerns the legality of the UK’s bulk interception of internet traffic transiting undersea fiber-optic cables landing in the UK, as well as access to information gathered by the NSA and shared with UK agencies. At a first glance this might seem like an ordinary surveillance case that is no different than many of the other cases the ECtHR has heard in recent years. What makes the case unique is that the NGOs are basing their argument for illegality not solely on the basis of Article 8 of the European Convention on Human Rights (Right to Privacy) or Article 10 (Freedom of Expression), but also on Article 14 (Prohibition of Discrimination). RIPA (much like the new IPA) distinguishes between the interception of external and internal communications, setting different degrees of protections for each. The NGOs claim that to grant persons “present in the UK [...] additional procedural safeguards” while denying the same protections to those outside the UK amounts to indirect discrimination on grounds of national origin. Oral hearings have been scheduled for the end of this year, with the hopes that a decision could be made in 2018. The ECtHR is thus poised to determine whether it is ever possible to justify differentiations in oversight, protections, and minimization procedures for domestic and foreign surveillance.

At face value, the human rights NGOs seem to stand on solid ground. Human Rights treaty bodies and U.N. experts have taken a unanimous position rejecting such distinctions and protecting the myth of a singular and universal right to privacy. In 2014 the U.N. Office of the High Commissioner for Human Rights issued a report following a General Assembly Resolution on the Right to Privacy in the Digital Age. In that report, Commissioner Pillay addressed the foreign/domestic surveillance debate and noted the following (para. 35-36):

”[there exist] ongoing discussions on whether “foreigners” and “citizens” should have equal access to privacy protections within national security surveillance oversight regimes. Several legal regimes distinguish between the obligations owed to nationals or those within a State’s territories, and non-nationals and those outside, or otherwise provide foreign or external communications with lower levels of protection. If there is uncertainty around whether data are foreign or domestic, intelligence agencies will often treat the data as foreign (since digital communications regularly pass “off-shore” at some point) and thus allow them to be collected and retained. The result is significantly weaker – or even non-existent – privacy protection for foreigners and non-citizens, as compared with those of citizens.

International human rights law is explicit with regard to the principle of non-discrimination. Article 26 of the International Covenant on Civil and Political Rights provides that “all persons are equal before the law and are entitled without any discrimination to the equal protection of the law” and, further, that “in this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” These provisions are to be read together with articles 17, which provides that “no one shall be subjected to arbitrary interference with his privacy” and that “everyone has the right to the protection of the law against such interference or attacks”, as well as with article 2, paragraph 1...”

Similar positions have been expressed by the Special Rapporteurs on Counter Terrorism (para. 62) and the Special Rapporteur on the Right to Privacy (para. 36). The Human Rights Committee has similarly echoed this position, suggesting that safeguards against arbitrary interference with the right privacy must be guaranteed to “all individuals, regardless of nationality and physical location when intercepted” (para. 26). Human rights scholars such as Professors Korff and Milanovic have similarly argued that any surveillance laws that adopt these distinctions reflect prima facie xenophobic biases, violate the prohibition on discrimination, and therefore must be “fundamentally re-written“ (p. 35).

Prof. Michael Reisman once compared those charged with upholding the myth system to a man “pulling blankets over his head to avoid the cold reality of dawn.” Indeed the practice of intelligence agencies stands in stark opposition to the strong rhetoric voiced by the human rights community in Geneva. The Washington-based Center for Democracy and Technology concluded in a 2013 report that: “most countries, even those that have recognized privacy as a universal right, seem to apply much lower protections (if any) to surveillance directed at foreigners.” I would even more decisive: there is not a single country that applies similar or higher standards of oversight and protections in the context of foreign surveillance than in the context of domestic surveillance.

In a recent article, I argue that these distinctions are not only a common feature in the surveillance legislation of state or the practice of signals intelligence agencies, but that they are justified. Discrepancies in jurisdictional reach and technological capacities make it necessary that countries be allowed greater leniency in adopting foreign surveillance policies. By waging an absolutist battle for universality, the human rights NGOs are losing the far bigger war, that of providing some human rights protections in the foreign surveillance context. Adopting the understanding that the differentiation in legal treatment is justified would allow us to replace the notion of a one-size-fits-all jurisprudence. We could then begin to consider the appropriate contours of a tailored human rights framework for foreign surveillance.