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Title: Understanding Why Citizenship Matters for Surveillance Rules
This paper examines the topic of whether the nationality of an individual under surveillance (the “target”) should be relevant to the legal standards for surveillance. There are statements under European Union law, and from the United Nations Special Rapporteur on the Right of Privacy, supporting the “universalist” position – that surveillance standards should apply globally, as a matter of an individual’s human right to be free from unjustified surveillance. By contrast, the actual law of the United States, Germany, and other nations is to apply stricter protections to their own citizens than to others. This paper offers a principled explanation of why those sorts of stricter protections can be justified, under two of the most important traditions of political theory, social contractarianism and utilitarianism. Under the former, stricter rules can be justified for citizens who are part of a social contract, with different rules applying outside of the nation, such as war zones. Under the latter, unique threats to democracy and the rule of law occur when a government intensifies surveillance of domestic political opponents. These justifications for stricter protections of surveillance concerning citizens are important to current disputes about foreign intelligence surveillance and Mutual Legal Assistance.
Bio
Peter Swire is the Holder Chair of Law and Ethics at the Georgia Tech Scheller College of Business, and Associate Director for Policy of the Georgia Tech Institute of Information Security and Privacy. He has appointments by courtesy with the College of Computing and School of Public Policy. In 2015, the International Association of Privacy Professionals, among its over 20,000 members, awarded him its Privacy Leadership Award. In 2013, he served as one of five members of President Obama’s Review Group on Intelligence and Communications Technology. In 2012-13, he was global co-chair of the Do Not Track standard of the World Wide Web Consortium. In 2009-10, he was Special Assistant to the President for Economic Policy, in the National Economic Council. He is Senior Fellow with the Future of Privacy Forum, a member of the National Academy of Sciences Forum on Cyber-Resiliency, and Senior Counsel with Alston & Bird, LLP. Under President Clinton, Swire was Chief Counselor for Privacy in the Clinton Administration, the first person to have U.S. government-wide responsibility for privacy policy. His activities in that role included being White House coordinator for the HIPAA Privacy Rule, chairing a White House Working Group on encryption, and helping negotiate the Safe Harbor agreement with the E.U. Swire is author of six books and numerous scholarly papers. He has testified often before the Congress, and been quoted regularly in the press. Swire graduated from Princeton University, summa cum laude, and the Yale Law School, where he served as an editor of the Yale Law Journal.
