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A brief word in response to Peter Margulies’s point about the costs of my proposal to give up the use of PRISM for “foreign affairs” surveillance. He believes the costs of my proposal would be too high. He makes some good points about the value of “foreign affairs” surveillance, especially as it may help enforce trade agreements.
While I share Peter’s views of the value of intelligence, I see no way for the US to continue to employ section 702 for general “foreign affairs” surveillance after the decision of the Court of Justice of the European Union (CJEU) in Schrems v. Data Protection Commissioner. The CJEU decision requires a narrower set of criteria, firmly rooted in national security.
A further objection to my proposal is that it rewards rank European hypocrisy. Other governments, including governments in the EU, engage in broad “foreign affairs” collection. Narrowing section 702 of FISA – thus foregoing such collection, at least for data inside the US – might be seen as naïve. Why tie our hands when our friends across the Atlantic refuse to tie theirs?
It is, without any doubt, hypocritical of EU officials to insist on narrower criteria than their own governments currently employ for intelligence surveillance. Certainly, the US should insist on reciprocity from European governments in any negotiations over surveillance reform.
More broadly, however, hypocrisy on surveillance is no longer a sustainable strategy for governments. In Foreign Affairs, Henry Farrell and Martha Finnemore note that a major effect of the Snowden leaks has been to “undermine Washington’s ability to act hypocritically and get away with it.” Hypocrisy, they argue persuasively, is not without its benefits. It has been the “lubricating oil” for US diplomacy and is “central to Washington’s soft power . . . .”
One could make the same point about Brussels. European values of human rights and data protection have been, on the whole, a force for good in the world, despite the failure of European governments to live up to them. Yet the EU, no less than the US, has less room to be hypocritical in the post-Snowden era. If a European court decision on privacy prompts the US to narrow its surveillance laws, European governments won’t be able to avoid similar reforms for long. The CJEU decision is, after all, a binding interpretation of European law.
It was a French aristocrat who once said, “Hypocrisy is the tribute that vice pays to virtue.” A cynical interpretation of François de la Rochefoucauld’s insight is to dismiss the need for moral consistency. Brussels bureaucrats can freely bash the United States for surveillance their own governments practice, as long as it serves their interests. They are just paying tribute to virtue!
A more hopeful take on La Rochefoucauld’s aphorism is that without hypocrisy, there can be no progress. As a sometimes naïve American, I plead guilty to the optimistic view. The US shares fundamental values with the European Union. It would not be so terrible if we cut back on the collection and use of data of EU citizens located in the United States in cases where the data is not strictly linked to genuine security threats.