Last year, Edward J. Snowden, a former N.S.A. contractor outlined the existence of a massive effort by the U.S. National Security Agency to track cell phone calls and monitor the e-mail and Internet traffic of virtually all Americans. The secret call records program — known as the “215 Program”, after Section 215 of the Patriot Act  — was part of the secret surveillance program that President George W. Bush unilaterally put in place after the terrorist attacks of Sept. 11, 2001.

In 2006, as part of a broader Bush administration effort to counteract terrorism, the Justice Department persuaded the Foreign Intelligence Surveillance Court (also known as the FISA Court) to begin authorizing the program. It claimed that Section 215, which allows the F.B.I. to obtain court orders for business records deemed “relevant” to an investigation, could be interpreted as allowing the N.S.A. to systematically collect domestic calling records in bulk, as potentially relevant to some ongoing investigations. The government lauded the usefulness of the tool although it was unable to point to any thwarted terrorist attacks that would have been carried out if the program had not existed.

The details of the program exposed by Snowden created a great deal of debate and consternation nationally and internationally, with the Obama administration receiving a great deal of criticism for allowing such a wholesale intrusion on privacy rights. Shortly thereafter, President Obama decided to appoint a review group and an independent federal privacy watchdog to review the program. They both concluded that major changes to the program were needed; the latter also indicating that the bulk collection was illegal, rejecting the government’s Patriot Act interpretation.

Last week the Obama administration announced that it is preparing to unveil a legislative proposal for a far-reaching overhaul of the National Security Agency’s once-secret bulk phone records program in a way that — if approved by Congress — would stop the collection the information, known as metadata, which lists millions of phone calls made in the United States.

Under the new proposal, the government would have to get permission from the FISA Court to review data about the time and duration of telephone calls that it believes may be connected to terror attacks. The bulk records would stay in the hands of phone companies, which would not be required to retain the data for any longer than they normally would. The N.S.A. could still obtain specific records, but only with permission from a judge, using a new kind of court order. The new plan would also allow the government to swiftly seek related records for callers up to two phone calls, or “hops,” removed from the number that has come under suspicion, even if those callers are customers of other companies.

Although some have expressed concern over how the records would be handled by employees at the telephone companies who might be asked to search the data in response to a government request, it is expected that safeguards would be put in place to avoid breaches of privacy.

Most critics of the old bulk data collection program think that this new initiative is a step in the right direction on the protection of privacy rights, and a compromise that still allows the government important investigative tools while decreasing the opportunity for abuse.


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.