Michael Hayden, the former head of the CIA and National Security Agency, said last week that: “The United States does conduct espionage,” and the Fourth Amendment to the Constitution protecting the privacy of American citizens “is not an international treaty.”  On its face this statement is a correct interpretation of law as the Fourth Amendment as well as other Constitutional protections have been held not to extend beyond the borders of the US.

The allegations that have been leveled against the NSA by whistleblower Edward Snowden, outline a vast program of spying on a scale not previously seen. The amount of data collected by the federal agencies involved, if true, is staggering and conducted in an indiscriminate manner in order to mine as much data as possible. It would be naïve to think that the US is alone in spying on its citizens and others, but it would seem that the voracity and abilities employed by the US are unparalleled. Moreover, the US not only spied on its enemies but also seemed willing to conduct widespread data intercepts of its allies, something that is not sitting well in Europe and elsewhere.

As regards its international obligations, the US is a member of the international community and is thus bound by the treaties it enters into as well as customary international law. Although not a treaty, one of the most widely approved international documents is the UN Universal Declaration of Human Rights, to which the US is a signatory. Article 12 specifically states that:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

The information collected from sources such as the internet, emails, social media networks, internet service providers, search engines, etc., belonged to someone and it should be considered private personal data. The US neither asked for permission nor consent to collect the data.

Additionally, as regards spying on diplomatic missions, the US might be afoul of the Vienna Convention on Diplomatic Relations, which at Article 27, states as follows:

The official correspondence of the mission shall be inviolable. Official correspondence means all correspondence relating to the mission and its functions…

Finally, the type of spying conducted by the US is likely violative of customary international law as defined in Article 38 of the Statute of the International Court of Justice.  This is generally determined through two primary factors: the general practice of states and what states have accepted as law. A very strong argument can be made that the protection of personal private data is customary international law as virtually every country on earth has some form of data protection law and is widely applied. In this regard, the US is on very shaky legal footing if its spying is as widespread and unfocused as has been reported. For the international community, to have the US government repeat as a mantra that the US has not violated the Fourth Amendment of the US Constitution because its spying did not target US citizens, is not just insufficient, but borderline offensive. Perhaps US citizens will believe that their government is not spying on them, or perhaps they will demand a better explanation and hold their government accountable for what amount to blatant violations of the right to privacy.

Governmental Intrusions, Twitter and the Right to Privacy

Malcolm Harris, one of about 700 protesters who participated in the Occupy movement march along the Brooklyn Bridge last October, was subsequently arrested and charged with disorderly conduct. The prosecutor in the case subpoenaed hundreds of Twitter messages alleging that they would show that the police did not lead protesters off the bridge’s pedestrian path and then arrest them, an argument that Mr. Harris was expected to make at trial.

Although Twitter originally refused, eventually, the criminal court Judge demanded that Twitter release the data or hand over its confidential earnings statements from the last two quarters so he could determine how much of a fine to levy against the company. Twitter, which keeps such financial data secret, eventually produced the  data.

The judge’s ruling said that, “If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy. There is no proprietary interest in your tweets, which you have now gifted to the world. This is not the same as a private e-mail, a private direct message, a private chat, or any of the other readily available ways to have a private conversation via the internet that now exist. Those private dialogues would require a warrant based on probable cause in order to access the relevant information.”

In its appeal, Twitter wrote that Harris’ tweets are protected by the Fourth Amendment “because the government admits that it cannot publicly access them, thus establishing that the defendant maintains a reasonable expectation of privacy in his communications.” The Twitter accounts in question have been closed and are no longer publicly available.

Technology that allows for the invasion of privacy evolves significantly faster than privacy protecting laws, and as a result, the laws are almost always reactive to these new legal scenarios and often rushed to meet the urgency of the case at hand. In this particular case, the question is whether a message on Twitter that a person posts for his followers is the same as a message “gifted to the world” as the Judge stated in his ruling, for which there is no reasonable expectation of privacy.

To the extent that Twitter allows a user to block a follower, the user has an expectation of privacy regarding his messages. I am pretty sure that Mr. Harris would have blocked a government representative who wanted to become a follower of his tweets.

Under these circumstances, did his messages become public? Were his messages “gifted to the world,” or are his messages more like emails, that would require the government to obtain a warrant to have access to them?