Post written by Michael A. Calabrese, J.D. expected May 2018, Elisabeth Haub School of Law at Pace University.

When we think of the term “Big Brother” what comes to most of our minds is the image of our own government sticking its eyes and ears into our private day to day business.  However, the United States government has taken this even further and has begun to engage in “cross-border surveillance” of foreign governments and international committees, such as the United Nations and European Union.  These warrantless acts of surveillance have focused on foreign embassies and citizens of foreign nations, including politicians of foreign nations.

Under United States law, the Foreign Intelligence Surveillance Act of 1978 dictates how “foreign intelligence information” is collected in both physical and electronic form.  The passage of the Act created with it the Foreign Intelligence Surveillance Court, which works to oversee federal law enforcement and the intelligence agencies’ requests for surveillance warrants.  However, electronic surveillance can be ordered by the President without a court order for a period of one year, provided that he does so only to acquire foreign intelligence information and the President orders the surveillance through the Attorney General.

Foreign nations undeniably take issue with being the subject of “cross-border surveillance” and while currently there remains no international laws or treaties prohibiting such surveillance, countries that engage in data collection of other nations violate the domestic laws of those countries.  Many critics of the United States’ method of foreign surveillance, such as the ACLU, believe that the National Security Agency (NSA) is practicing “unconstitutional surveillance of Americans’ communications.”  The NSA captures untold numbers of communication and data from American citizens, when the agency is supposedly only surveilling foreign citizens and organizations.  Since, the NSA through the Foreign Intelligence Surveillance Act is only permitted to gather data on foreign intelligence not on United States citizens, this practice is a major violation of the assurances Americans thought they had against unwarranted searches.  Consequently, the purported safeguard protecting Americans’ communication and data is ineffective.

Former President Barack Obama attempted to quell the world’s fear of an overzealous eavesdropping United States when he released this statement “the main thing I want to emphasize is that I don’t have an interest and the people at the NSA don’t have an interest in doing anything other than making sure that we can prevent a terrorist attack.”  However, this did not persuade foreign governments or their civilians that the United States wasn’t invading their privacy rights.  Comments from the United States current president, Donald Trump, claiming he was the subject of such “wire tapping” has added fire to the fear domestic and foreign citizens have about their privacy being violated.  Moreover, the question should be why would former President Obama’s words calm these fears when the United States government’s actions have only furthered the violation of individual’s privacy rights and their government’s sovereignty?

References:

• Foreign Intelligence Surveillance Act of 1978, Pub. L. No.  95-511
• Danny O’Brien & Rainey Reitman, The Privacy Shield is Riddled with Surveillance Holes, Electronic Frontier Foundation (Mar. 3, 2016).
• Laura Poitras, Marcel Rosenbach & Holger Stark, How America Spies on Europe and the UN, Spiegel Online (Aug. 23, 2013).
• Documents Confirm How the NSA’s Surveillance Procedures Threaten Americans’ Privacy, ACLU.org.
• Is Freedom From Cross-Border Surveillance a Human Right?, ILI Student Blog (Sept. 25, 2013).
• Ryan Lizza, Susan Rice and rhe Latest Bogus Attempt ro Justify Trump’s Wiretapping Tweet, New Yorker (Apr. 4, 2017).