Among the revelations about NSA surveillance this summer was the news that the United States engaged in massive surveillance of foreign governments and citizens, including embassies, delegations, and politicians of its allies and trading partners, and the offices of the European Union and the United Nations.
These revelations raise questions about the status of electronic surveillance under international law. In the United States, the Foreign Intelligence Surveillance Act authorizes the government to intercept the communications of foreign targets (any “non-United States Person”) without a court order, at the authorization of the Attorney General. Other countries have no legal restrictions at all on electronic surveillance outside their own borders, or have adopted extraterritorial legal frameworks to permit their governments to engage in foreign communications surveillance of other countries.
Recently, however, there is a trend to see communications surveillance as a matter of human rights. Under this view, might cross-border espionage by a state be considered to be a violation of international human rights law?
Conventional wisdom viewed international espionage at peacetime as unregulated by international law. To be sure, countries that conduct espionage on foreign soil violate the domestic laws of those countries, and acts of espionage are viewed as “unfriendly acts” among nations. However, there are currently no international customary norms or treaties forbidding such actions. It is argue that the very clandestine nature of espionage places it beyond the power of international law to regulate.
However, earlier this year, the UN Human Rights Council received the “Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue”. The report ties the practice of communications surveillance, including foreign intelligence surveillance, to the human rights of privacy and freedom of opinion and expression. Recently, a coalition of non-governmental organizations issued a declaration of “International Principles on the Application of Human Rights to Communications Surveillance”, which ties surveillance to human dignity, the freedoms of expression and associations, and the right to privacy, but treats all surveillance activities equally and does not draw a distinction between foreign and domestic surveillance.
It is hard to predict what affect, if any, will the trend to regard unlawful electronic surveillance as a matter of human rights have on foreign intelligence gathering under international law. Both the report of the HRC Special Rapporteur and the International Principles do not suggest any international measures against foreign surveillance, and confine their recommendations to countries’ domestic laws. Nevertheless, viewing mass electronic surveillance across borders as a violation of international human rights law might add weight to the diplomatic calls on the United States and its intelligence-sharing allies to limit their dragnet sweep of the world’s communications.
Information on US surveillance activities against foreign counties:
On the international law of espionage:
A. John Radsan, The Unresolved Equation of Espionage and International Law, 28 Mich. J. Int’l L. 595 (2006-2007).
Geoffrey B. Demarest, Espionage in International Law, 24 Denv. J. Int’l L. & Pol’y 321(1995).
Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue
International Principles on the Application of Human Rights to Communications Surveillance.