In my piece yesterday, I drew a clear distinction between the National Security Administration’s wide-ranging domestic surveillance, which I would like to see curtailed, and its foreign exploits, with which I am largely fine. Specifically, I argued against “extending globally the protections of the Privacy Act of 1974 and according to foreigners bulwarks to which they have no claim,” and I suggested that much of the criticism of the NSA was predicated less on an objection to its overreach as on a general conviction that the United States was a global bully and needed to be restrained.
Today, the Atlantic’s Conor Friedersdorf has published a thoughtful response to my column, much of which I agree with wholeheartedly. Friedersdorf accepts my basic claim that “a government spying on its own citizens really does present unique dangers,” but considers that I’ve understated the degree to which a foreign power can do me harm, and also that I don’t go far enough ”to protect foreigners from current and future excesses of the U.S. surveillance state, both for their sake and for ours.” These are reasonable objections, of course.
After laying out a few basic principles, Friedersdorf lays out a few hypothetical “policy preferences” to illustrate where he’s coming from:
I don’t have language worked out that could be dropped into a piece of reform legislation, but I can lay out some tentative hypotheticals that fall on both sides of my line. I make no comment on their plausibility. They’re offered as thought experiments.
Compromising all computer hardware sent to North Korea so that much of what’s typed by its government is available to the United States? I’ve got no objections. Doing the very same thing to South Korea? That should be forbidden.
Eavesdropping as a Chinese general discusses his country’s intentions toward Japan and their broader strategy in the Pacific? Kudos. Eavesdropping on a random sampling of typical Chinese city-dwellers to gauge public opinion about America? That should be forbidden.
Spying on British political candidates in order to surreptitiously leak damaging personal information to the British press, facilitating the rise of the party friendliest to U.S. interests? That should be forbidden. Gathering blackmail material on German bureaucrats to facilitate the awarding of lucrative bids to U.S. companies? Forbidden.
Mass surveillance on foreign nationals that is turned over to foreign governments?
Conducting surveillance of David Frum’s family members in Canada in hopes of pressuring them to pressure him to write favorable articles about the Obama Administration?
Constructing an exhaustive database that contains all emails sent and received in France for a five-year period, just in case it comes in handy later for some unknown reason?
(Even if we never abused it, are we confident that we could prevent the data from being hacked or leaked? Bradley Manning and Edward Snowden suggest otherwise.)
For what it’s worth, I agree with almost of these general suggestions, and also with Friedersdorf’s related contention that “the notion of unconstrained NSA spying on foreigners would seem to permit all manner of mischief.” I would, however, note a couple of things. While I certainly think that the United States should behave with restraint on the foreign stage, I’m not sure that I want it to be legally required to do so. Extending the 1974 Privacy Act to those abroad would do just that, blocking the extent to which America could spy on non-Americans outside of its borders. Friedersdorf’s hope that the rules will prevent “us from being corrupted by too much power” and show “a determination to avoid becoming bullies” is a noble one. Nevertheless, I would argue that in the case of foreign sleuthing, the legal balance is about right as it is — even if the practical balance has not been.
Friedersdorf concedes admirably that he doesn’t ”have language worked out that could be dropped into a piece of reform legislation.” Nor do I, so I’m certainly not about to criticize him for lacking specifics. Nevertheless, I suspect that the lack of such language is at least in part because writing it would be nigh on impossible. What, for example, is an “ally”? For these purposes, do we count Egypt or Turkey — both countries in which we have real strategic interest but in which the governments are of dubious and sometimes incomplete loyalty? How would the distinction between North and South Korea be codified? How would we decide who was to be deprived of protections in a country whose government is friendly (take the IRA, for example)? And if Lord Palmerston was right to say that “we have no eternal allies, and we have no perpetual enemies,” are we to ask Congress to redraw the rules each time something changes, or would it not make vastly more sense to rely upon the judgment of the executive branch? At home, we require warrants to distinguish between suspects and everybody else (a principle that the NSA has grossly violated). Does this system work in a foreign context?
Second, I couldn’t help but notice that a significant number of these scenarios range beyond the collection and storage of foreigners’ information and into its use. One of the suspicions I laid out in the post was that those who wish to impose restrictions on this country’s foreign spying are often “as vexed by the activities that it enables as by the spying itself.” Friedersdorf’s list seems to bear this out. Other than his objection to the general collection of data, most of his points involve a step beyond spying — that is, the United States’s interfering with the outcome of British elections, the government’s attempting to secure contracts from German companies, and the blackmailing of David Frum’s family in the hope that it will be to be nice to the president. It strikes me that these things can easily be made illegal, or at least restricted so as to require good justification, without extending the general privacy protections to foreigners that we expect to enjoy at home.
I accept Friedersdorf’s essential concern, which is that once data has been collected it is there to be abused. I also acknowledge that I would absoutely not accept at home the compromise I have laid out above. Ultimately, though, this has to come back to my basic view, which is that because the scope for abuse is so much higher domestically a different calculation is necessary than it is abroad. Friedersdorf writes that he’d “much prefer constraining the NSA, in accordance with [his] beliefs, than giving the foreign surveillance agency carte blanche to spy abroad however its officials see fit.” I respect that. It’s a tough and unpleasant question. But, on balance, I’d rather leave the door open.