The Washington PostDemocracy Dies in Darkness

Why “we only spy on foreigners” doesn’t work any more for the NSA

In recent weeks, the NSA has stressed that it only "targets" people with foreign ties. That argument may satisfy most Americans. But the foreigners in Europe aren't happy about it.

On Thursday, as Americans celebrated their independence, the European Parliament passed a resolution demanding that the U.S. government provide the E.U. with "full information on PRISM and other such programmes involving data collection." If the U.S. doesn't cooperate, the E.U. is threatening to curtail a variety of data sharing with the United States. The E.U. has also demanded that surveillance issues be put on the agenda of the upcoming U.S.-E.U. trade talks.

The Internet is forcing the world's governments to rethink a fundamental premise of surveillance law: the distinction between foreign and domestic surveillance. That distinction makes less and less sense as the Internet becomes increasingly globalized.

In the old days, surveillance law was simple: When the U.S. government spied inside U.S. borders, it generally needed a warrant from a judge. When it spied overseas, U.S. law allowed it to do pretty much whatever it wanted. That division of labor was reflected in the structure of the intelligence community: The NSA was limited to foreign intelligence, and its operations received little public scrutiny. The FBI, which focused on domestic law enforcement, received more active public oversight from both the courts and Congress.

The differing legal treatment of domestic and foreign surveillance made sense because spying inside a government's own borders was a very different proposition from spying on foreign soil. In the 20th century, the most important domestic communications providers — the Post Office and the companies in charge of telephone and telegraph lines — were located inside the U.S. They could therefore be compelled to cooperate with surveillance efforts. The ease of domestic surveillance made it ripe for abuse, so legal safeguards were needed to keep it from getting out of hand.

In contrast, overseas surveillance used to be difficult. The postal service and phone company in France weren't going to help the U.S. government spy on French citizens — at least not without the approval of the French government. So while U.S. law gave our government unfettered authority to spy on French citizens, its practical ability to spy on French people was fairly limited.

The Internet has obliterated the once-clear line between foreign and domestic surveillance. Hundreds of millions of foreigners use American services such as Gmail and Facebook. The NSA has argued that to preserve its capacity to spy on foreigners, it needs a free hand to tap into online services that are also used by millions of Americans.

But the NSA is trying to have it both ways. With programs like PRISM, the NSA gets all the benefits of domestic surveillance programs. But the NSA has insisted that when it is "targeting" foreigners, it cannot be tied down by the oversight mechanisms that traditionally accompanied domestic surveillance.

That position may prove untenable. Europeans are unlikely to put up with a situation where a foreign government has unfettered access to their private communications. If the E.U. cannot convince the U.S. to provide their citizens with stronger legal protections, then Europeans will have a powerful incentive to switch to online services that are under the physical jurisdiction of their own democratically-elected governments. So even if the U.S. government doesn't care about the privacy rights of Europeans, it may be forced to change its policies for economic reasons.

And while foreigners are most outraged, the current situation isn't great for Americans either. The NSA's assurances that it only "targets" foreigners are essentially on the honor system. The NSA has the technical capability to intercept purely domestic communications, and there are few formal checks to prevent this power from being abused. Changing the law to better protect the rights of foreigners would have the happy side effect of ensuring that "foreign surveillance" doesn't become a loophole for spying on Americans too.