On Monday, I joined the debate between Glenn Greenwald and Ben Wittes by arguing that the issue of mass surveillance of foreign populations is regulated by international human rights law (IHRL).

Over at Lawfare, Ben has now responded to my post and Ashley Deeks has posted in support of Ben’s response.

Let me start by noting a potential point of agreement between Ben and myself: I do not necessarily believe that IHRL’s regulation of foreign surveillance activities is generally desirable. My brief is accordingly not based on a normative preference for the current international legal regime. But that doesn’t repel me from a realistic appraisal of the existing legal framework.

As readers of the debate may recall, Ben’s criticism of Glenn Greenwald worked with two assumptions. He assumed that international law imposes no legal constraints on mass surveillance of foreign populations; and he assumed that the validity of mass surveillance of foreign populations is not even an open legal question. He also challenged Glenn, in essence, to name a single country that recognizes substantial legal constraints on foreign surveillance activities. Those assumptions were not too difficult to disprove. And that challenge is easy to meet in light of the overwhelming support of UN member states lined up behind Germany and Brazil’s effort to craft the 2013 UN General Assembly Resolution recognizing that international human rights law regulates extraterritorial mass surveillance. (Indeed, the political support in the UN was so overwhelming that the Obama administration dropped its opposition and went for a compromise to avert even stronger draft language.)

In response to me, Ben tries to move the goalposts. He suggests that my argument is that international law prohibits mass surveillance per se. That’s not what this particular debate is about. Indeed, it would depend on the scope and purpose (and potentially the transparency) of a specific surveillance program whether it satisfies international obligations to respect fundamental privacy rights. International law experts have concluded that specific NSA programs violate those IHRL rules (Scheinin testimony; Korff testimony; European Parliament Committee’s draft report), but that is still not the question here.

Our debate is more simply whether international law – and the human right to privacy in particular — may be said to impose serious constraints on foreign surveillance practices, in particular mass surveillance.

On that point, Ben’s and Ashley’s responses are unequivocal. Ben doubts “there is, in fact, international law restricting collection against foreigners overseas.” And Ashley believes that “Germany thought … that the ICCPR does not obviously regulate electronic surveillance” and that Germany’s position thus “suggests that the law is at least quite unclear in this area.” Note if the law is “unclear” in that respect (i.e., an open legal question), Ben’s original position is still in trouble. And note as well, perhaps the obvious: Germany ultimately chose not to codify a new protocol to make clear that existing international human rights regulates extraterritorial mass surveillance, but instead chose more wisely the fast track approach of a powerful statement by UN member states to officially recognize that principle in existing law.

In framing the discussion, Ashley states that she agrees with “Ben mak[ing] the point that the international legal regime that purportedly regulates metadata collection is, at best, highly nascent.” On that point, I am not sure what they might mean by international rules on “metadata collection.” The foreign surveillance programs in question include collecting and analyzing the content of communications. That is not at all like the reasonable expectation of privacy we’re used to discussing in the context of metadata call information. Listening in on the content of calls, texts, and emails constitutes a much greater infringement on the right to privacy, for which existing IHRL rules will be even more settled and easier to apply.

More generally, the notion that the IHRL regime is “nascent” on the relevant questions of law is flawed in several respects. First, nascent compared to what? The international human right to privacy in the context of surveillance is arguably even more developed than what we have from the US Supreme Court regarding the constitutional right to privacy in Smith v. Maryland written thirty-five years ago. Federal courts are only now grappling with how to address modern mass surveillance technologies and programs. Yet Ben was comfortable accepting, in his criticism of Greenwald, that the propriety of domestic surveillance practices could be called into legal question despite such nascent constitutional law.

Second, in the specific context of the ICCPR, the Human Rights Committee laid the foundation for application of Article 17 of the Covenant to digital privacy in a General Comment in 1988. UN Special Rapporteurs have since developed the principles set forth by the Human Rights Committee in the context of CT surveillance practices (e.g., Scheinin report and La Rue report; see also regional human rights courts’ jurisprudence). And the recent UN Resolution, as Philip Alston explains, “unequivocally endorses” the Special Rapporteur report that contains “the most detailed and comprehensive statement to date of the principles that should apply in protecting human rights from state surveillance.” Indeed, it is remarkable how quickly UN member states reacted in drafting a resolution confirming and clarifying the application of IHRL to mass surveillance.

So far so good, but what about Ben’s point that “the US does not accept the ICCPR’s extraterritorial application anyway.” Just because the administration claims that the ICCPR is inapplicable abroad, doesn’t mean the administration’s assertion is legally correct. Indeed, the claim is arguably the weakest of all the US government’s positions relevant to this topic. Plus, the most persuasive reading of the historical record is that — even if the Obama administration today takes the position that the ICCPR doesn’t apply extraterritorially — the US government at the time of drafting the Covenant and at the time of ratifying the Covenant believed otherwise.

Finally, there is a relatively strong legal argument (strong enough for present purposes) that the US accepts that the obligation to respect the right to privacy applies extraterritorially as a matter of customary international law. Consider the following three propositions:

Proposition 1. The US government accepts that some human rights obligations apply extraterritorially as a matter of customary international law.

As an example, the US military’s 2013 Operational Law Handbook states:

“IHRL based on CIL binds all States in all circumstances, and is thus obligatory at all times. For official U.S. personnel (i.e., “State actors” in the language of IHRL) dealing with civilians outside the territory of the United States, CIL establishes the human rights considered fundamental, and therefore obligatory.”

Proposition 2. The US government accepts that one of the most reliable sources for identifying which norms constitute customary international law for such purpose is the Restatement on Foreign Relations Law.

Again, the 2013 Operational Law Handbook is instructive:

“Among these sources, perhaps the most informative is the Restatement (Third). According to it, the United States accepts the position that certain fundamental human rights fall within the category of CIL, and a State violates international law when, as a matter of policy, it ‘practices, encourages, or condones’ a violation of such rights. The Restatement makes no qualification as to where the violation might occur …” “The Restatement gives the following examples of human rights that fall within the category of CIL: prohibitions on … cruel, inhuman, or degrading treatment or punishment, prolonged arbitrary detention … and consistent patterns of gross violations of internationally recognized human rights.” (emphasis added)

Proposition 3. The Restatement defines “consistent patterns of gross violations of internationally recognized human rights” to include violations of the right to privacy of the home (not “when committed singly or sporadically” but “if the state is guilty of a ‘consistent pattern of gross violations’ as state policy”).

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The foundational IHRL principles relevant to mass foreign intelligence surveillance are far more developed than Wittes and Deeks (and Eric Posner and Julian Ku) acknowledge. For readers who disagree with the normative content of this legal regime, the preceding analysis more accurately identifies the nature of the threat. For readers who agree with its content, the above analysis identifies a powerful legal force in their favor.