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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.