Global Dialogue on Governmental Extra-Territorial Surveillance

This is the 6th article of our Spies Without Borders series. The series looks into how the information disclosed in the NSA leaks affects Internet users around the world whose private information is stored in U.S. servers, or whose data travels across U.S. networks.

As news of the alarmingly broad reach and scope of the U.S. surveillance program reverberates around the globe, we call for a global dialogue on the increased capacity of States around the world to conduct sweeping extra-territorial surveillance from domestic soil. While international public outrage has justifiably decried the scope and reach of U.S. broad surveillance on foreigners, the fact that the U.S. government has carte blanche surveillance powers over foreigners is not new.

In truth, U.S., foreign intelligence has always had nearly limitless legal capacity to surveil foreigners because domestic laws and protections simply don't cover that activity. So while this isn't a new problem, it has been exacerbated as the U.S. has enjoyed a dramatic increase in practical capacity to gather and analyze data that has not been matched with an increase in legal protections. In this context, we asked Korea University Law School Professor Kyung Sin (“K.S.”) Park, Open Net, South Korea to provide his views on the matter.

Note: This is a guest blogpost. We do not necessarily endorse the views expressed nor have we checked the facts asserted.

A Call for Global Dialogue on Principles on “Cross-Border” Surveillance (and Korean PRISM?)

By Professor Kyung Sin (“K.S.”), Open Net

What procedural safeguards shall we demand from our government agencies conducting communications surveillance on people in other countries, regardless of where the surveillance is taking place? Unbeknownst to many, this is the question exposed bare by the recent controversy surrounding PRISM, a scheme of warrantless or secret-warrant-based surveillance taking place within U.S. on people in and outside the U.S., and we need a global dialogue in answering this question, which is more intractable than one may think

Yes, in the ideal world governed by me, I might make many changes to the current system. But we do not live in that ideal world.  In this real world, it is surprisingly not clear what international norms should govern an answer to a question like: Should agents of MI6, CIA, and KNIA (Korean National Intelligence Agency) obtain normal court warrants to wiretap or eavesdrop on their respective potential enemies or on one another?  Lack of such norms allowed the U.S. to set up FISA more than 30 years ago to allow warrantless or secret-warrant-based intra-country surveillance on foreign agents within the U.S., and all hell broke loose now only because the advance and global interlocking of the Internet allowed an explosion of the amount of inter-foreigners communications available for within-US surveillance. Yet when it comes to outside the U.S., even FISA does not apply, meaning that there seems to be no restriction.  Indeed, there is no international principle on cross-border communication surveillance, i.e., state surveillance on people residing outside that state’s territory, regardless of where the information is intercepted.

Maybe, for this reason, we have yet to see American civil society demanding full dismantling of the FISA system.  American civil society’s immediate concern has been justifiably local: that the U.S. used FISA wiretapping against their own citizens or residents who are not foreign agents, as proven by the recently leaked court order requiring disclosure of millions of Verizon users, unavoidably people on American soil and mostly innocent given the sheer number.  Also, the U.S. is now suspected of sharing the PRISM data with several countries of mainly Anglo or Germanic ancestry.  People of these countries certainly should protest against such sharing which allows their governments to sidestep all the domestic due process of law, warrant and what not, in achieving surveillance on their own people.  So, Americans and their “allies” already have enough to be angry about.

But, how about the rest of us such as Koreans, with whom the U.S. supposedly has not shared the PRISM data?  For one, if we non-Americans are to be angry for the same reason that Americans are angry about FISA and PRISM, our civic anger should be first directed towa