The Message We’ve All Written: Why Government Collection and Retention of Data Can Interfere with Privacy Rights

On July 5, the Washington Post published an excellent investigative report revealing that the US intelligence agencies are collecting and storing an enormous number of communications sent by “ordinary internet users” who are not actually the targets of any US surveillance program.  The report concerns the vast scope of the agencies’ collection activities under the ostensible authority of Section 702 of the FISA Amendments Act of 2008, a provision that permits US authorities to engage in the warrantless surveillance of non-US persons (i.e., people who are not US citizens or residents, and whom the authorities reasonably believe to be abroad). Most of the Post report concerns the agencies’ incidental collection of communications to or from US persons, many of whose links to the actual targets of the surveillance are tenuous at best.  At the end of the article, however, the Post tells the story of a 29-year-old Australian woman whose on-again, off-again romantic partner decided to travel to Afghanistan in 2012 in the hopes of joining the Taliban.  In discussing the agencies’ collection of the woman’s deeply personal messages, the article provides a perfect illustration of a fundamental aspect of the human right to privacy: the fact that the mere gathering of communications constitutes an interference with the right that will always be illegal unless it is fully justified.

The woman in question happened to have the misfortune of falling in love with the wrong person, trading a number of heartfelt and intimate Facebook messages with a target of NSA and Australian surveillance during the course of a stormy relationship.  The messages between the pair display a range of emotions from affection and hope to betrayal, shame, and anger.  Above all, the correspondence conveys the woman’s grief and pain as the relationship disintegrated.

One reason the woman’s story is so powerful is that we’ve all been there: at some point in our lives, nearly all of us have typed some aspect of our innermost thoughts or convictions or emotions onto a screen and pressed “send.”

One reason the woman’s story is so powerful is that we’ve all been there: at some point in our lives, nearly all of us have typed some aspect of our innermost thoughts or convictions or emotions onto a screen and pressed “send.”  We may have understood on some level, as US law assumes we do, that our messages would pass through a cable or server that was owned by someone else.  Even so, if we had learned that a complete stranger had collected those messages—let alone compiled them into a dossier and retained them for months or years, just in case he or she wanted to read them someday—we would probably feel much the same way that the Australian woman did when she learned that the NSA had gathered more than 800 pages of her private correspondence.  “Do I feel violated?” she asked rhetorically, and immediately answered her own question: “Yes.”  She understood why the US and Australian authorities had decided to target her partner, she said, but her sense of violation remained.

In international human-rights law, our instinctive sense that governments abuse us when they intercept our private letters, e-mails, chats, text messages, and calls without a sufficient justification is captured in provisions that prohibit countries from committing any “interference” with the right to privacy unless they have a compelling reason to do so.  The International Covenant on Civil and Political Rights, for example, bars governments from subjecting anyone to an “arbitrary or unlawful interference with his [or her] privacy, family, home or correspondence.”  Similarly, the European Convention on Human Rights provides that governments cannot engage in any “interference” with the right to private life, except where the interference is “in accordance with the law and … necessary in a democratic society.”  Repeatedly, the European Court of Human Rights—whose rulings affect nearly a quarter of the world’s countries—has found that a government’s secret interception of communications necessarily constitutes an interference with a person’s right to privacy.  According to the Court, this type of collection must be necessary in a democratic society in order to be lawful, even if the authorities never choose to read or use the materials they’ve intercepted.  The same is true when a government decides to store private materials or information after collecting them.  At least with respect to interception, the Inter-American Court of Human Rights has followed the European Court’s lead.

The United States, of course, is not a party to the European Convention on Human Rights, but it is bound by the ICCPR as well as the American Declaration of the Rights and Duties of Man, which also contains privacy protections.  Therefore, one might expect that US authorities would give credence (or, at least, some amount of thought) to the two human-rights courts’ longstanding and generally uncontroversial case-law establishing that a government’s collection of an individual’s communications is unlawfully intrusive unless it is adequately justified.

Yet, PPD-28, a policy directive that President Obama issued in January of this year that relates to the NSA’s foreign surveillance activities, assumes that the United States is entitled to “collect[] non-publicly available signals intelligence in bulk” in at least some circumstances and also treats “the collection of information about persons whose activities are not of foreign intelligence or counterintelligence value” as inevitable.  Although it orders the relevant intelligence agencies to conduct an annual review of their collection procedures and places significant limits on the use of data that the agencies collect, PPD-28 places few meaningful limits on the collection itself.  In fact, the directive seems to take for granted the notion that the US could lawfully retain most intercepted communications for up to five years or even longer.  The July 2 report on Section 702 surveillance by the Privacy and Civil Liberties Oversight Board expressed discomfort with the “unknown and potentially large scope” of the intelligence agencies’ “incidental” collection of communications to or from US citizens and residents, as well as the communications of people of various nationalities who merely mention the phone number or e-mail address of the target of the surveillance in a message.  However, PCLOB ultimately sided with the agencies in upholding the legality of their programs for collecting foreign communications—including the notorious “Upstream” program, through which the agency temporarily collects all communications data that passes through the undersea cables widely known as the “Internet backbone.”

In this context, several aspects of the anonymous Australian woman’s plight are worth noting.  It is true that the woman herself seems to accept the idea that the collection of her communications was justified (even if she does not feel the same way about their retention), and at least some legal commentators have taken the same view.  However, the fact that the woman’s partner was such a poor candidate for armed insurgency that the Taliban refused to take him seriously should give us pause, as should the fact that the US government has taken a rather inconsistent position concerning question of whether the Taliban in Afghanistan is in fact a terrorist organization.  Moreover, after the man returned to Australia, the authorities there declined to charge him with any crime.  These facts raise questions as to whether it was truly necessary for the US and Australian intelligence agencies to collect the couple’s personal correspondence, and highlight many of the reasons that the agencies’ activities should be subject to close scrutiny and supervision in each individual case—including, very possibly, yours.

The US intelligence agencies (not to mention the President and the courts) should acknowledge that the collection and storage of communications, even if the agencies never read or use them, is inconsistent with human rights unless it is fully justified.  Furthermore, the public must be careful when evaluating the agencies’ claims that all of this collection and storage is actually necessary to make us safer.  If the Australian’ woman’s story—or the thought that your own intimate correspondence could be intercepted in the name of national security—makes you uncomfortable, then your instincts are well-aligned with the prevailing human-rights laws in this area, and help to illustrate the very reasons that those laws exist.