Playing fast and loose with the Privacy and Rights of Foreigners could put America’s own citizens at risk

America frequently seeks to apply international laws on others, that it would not want to be applied to itself - recent examples being complaints that Iran was not keeping to its commitments to Iran nuclear deal framework (the Joint Comprehensive Plan of Action) when the US itself had unilaterally withdrawn from the deal in 2018, or complaints that Chinese are not abiding by the United Nations Convention on the Law of the Sea (UNCLOS) when the US has never signed up to the convention itself.

This kind of ‘American Exceptionalism‘ becomes particularly concerning when it comes to the privacy and rights of individuals and to their personal privacy and rights in the form of protection from surveillance and interrogation.

Americans are vociferous in their support for such rights on their own soil:

Surveillance: 

• The right to privacy is alluded to in the Fourth Amendment, which states, "The right of the people to be secure in their persons, houses, papers, and effects,[a] against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." 
• However, the Privacy Act (1974) established a Code of Fair Information Practice that governs the collection, maintenance, use, and dissemination of personally identifiable information.
• And the Freedom Act (2015) mandated an end to bulk collection of phone call metadata by the NSA within 180 days but allowed continued mandatory retention of metadata by phone companies with access by the government with case-by-case approval from the Foreign Intelligence Surveillance Court.

Interrogation: 

• The US Miranda rule ensures ”the right to have counsel present at the interrogation” or indeed to remain silent and is deemed “indispensable to the protection of the Fifth Amendment privilege.”

American authorities, however, tend to be somewhat less concerned about the rights of others though. For example, Executive Order 13768, signed by Trump in his first week in the White House excluded “persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.”

And in extending their mass surveillance program on a global basis they have frequently applied extraterritorial provisions that have undermined the privacy rights and laws in other countries. Indeed in addition to EO 13768, Section 702 of the Foreign Intelligence Surveillance Act of 1978 (FISA) and EO 12333 were cited as reasons that the European high court recently overturned Privacy Shield, the EU / US data-sharing treaty.

In addition to using such tactics as part of its mass surveillance program, the US has also used them as part of its ongoing trade war with China. Even as the US accused Huawei of having supposed back doors, classified documents disclosed by Edward Snowden showed that in an operation code-named “Shotgiant” the NSA had hacked into Huawei’s HQ and stole its source code in an attempt to create its own back doors.

And the US has since stepped up its campaign against Huawei by lobbying to have its equipment banned internationally on the basis of national security and by seeking to arrest its CFO for supposed violations of the trade embargo on Iran.

Interestingly though, when Huawei’s CFO was held, she was not afforded her Miranda rights (they do not apply in Canada) and was detained and questioned illegally for a few hours before being told that she was going to be arrested.

It should also be noted that in trade negotiations with China, the US has indicated that the ban on Huawei and the arrest of its CFO would be lifted if an agreement on trade terms were reached. This would indicate that there are no actual national security concerns nor any real criminal case to answer and that these are just negotiating tactics.

What are the consequences of such actions, and could they backfire?

What kind of response do you think there’d be if a major US tech firm was banned from major markets without any evidence or trial? Or if a senior US executive was detailed whilst traveling, interrogated illegally and then arrested? Or if a foreign government conducted mass surveillance of US citizens and introduced extraterritorial law that would allow it to seize data on servers located in the US? I’m guessing that there would be uproar.

1. The Huawei 5G ban sets a dangerous precedent: if the US uses such tactics to further its trade negotiations and to favour its own technology vendors (all of whom have fallen far behind Huawei in 5G) then what is to stop other countries or trade blocks from arbitrarily banning US firms?
2. The arrest of Huawei’s CFO sets another dangerous precedent: if the US uses such tactics against executives of foreign firms, then what is to stop other nations arresting visiting executives from the US, detaining and questioning them illegally and then arresting them in a bid to further whatever trade negotiations they are pursuing?
3. US mass surveillance is already backfiring on US tech firms and their access to the EU market: When Privacy Shield, the EU / US data-sharing agreement was recently overturned in the EU high court, it exposed the fact that Facebook had been transferring data to the US illegally. The ruling means that unless the US ceases it mass surveillance programs, its tech firms will not only lose the right to transfer personal data of EU citizens to the US, but have also lost the right to store and process it within the EU as well. Facebook has already stated that changing its processes to protect EU citizens from mass surveillance and comply correctly with EU law will be so challenging that it has even threatened to cease operations in Europe entirely. All US telcos, cloud firms, and social media giants now face the same problem.

The US is not only at odds with China and the EU. A new Cloud Assessment and Authorisation Framework has just been released by the Australian Cyber Security Centre. It is closely aligned to the recommendations in Europe about using local cloud providers to avoid extrajudicial control and interference by a foreign entity. Singapore and Japan are also known to be looking at the impact of the US mass surveillance and its extraterritorial legal overreach on their own markets.

Once seen as a bastion for the international rule of law, the US has not only seen an erosion of rules and norms at home, but has also been actively undermining them abroad. This has not only tarnished its international reputation, but is starting to backfire and compromise its own interests and with it those of its citizens and businesses.

The US may well point to instances where other countries have infringed on international treaties, laws and norms, but unless it complies with them itself it risks looking hypocritical.

Facebook has already said that it may well need to cease operating in Europe. Most other US tech firms are going to find it difficult to continue doing business in Europe as well. US firms may also find that their products and services are banned or their executives arrested as other countries start to adopt America’s own trade war tactics.