Prominent legal scholar Eric Posner argued on Slate this past week that foreigners should have no right to privacy from NSA surveillance. In an article entitled “Keep Spying on Foreigners, NSA”, Posner writes “They have no right to privacy from US surveillance- and they shouldn’t.” He argues that there will never be an international digital right to privacy (as Germany has proposed), because it “makes no sense.”
His article addresses comments from law professor David Cole, who has argued that “privacy is a human right.” Posner, however, doesn’t support this theory, as, in his opinion, foreigners are already protected by international law. As a result, foreign governments can’t offer the U.S. anything valuable in exchange for a commitment not to actively conduct surveillance on its citizens, because the promise not to spy on one another simply doesn’t mean anything. He continues to argue that, because of the U.S.’s economic and political strength, it has little to gain from making promises to foreign nations to refrain from active surveillance, and is already restrained from abusing its powers by international law.
Posner concludes “A government gains advantage from obtaining information about a person only if it can use force against that person. Foreigners are protected by national boundaries. That is why it makes sense to give constitutional privacy protections to citizens, and not to foreigners who live overseas. The call for an international right to digital privacy will go nowhere, because it makes no sense.”
The full link to Posner’s article can be found here.
Kelly Ann Taddonio, Senior Research Fellow
Center for Policy & Research