I can't speak for others, but as far as I am concerned, every person on earth has the exact same rights. I see no difference between an American and someone from another country. This informs my stance on all of US foreign policy. To me, spying on an innocent Iraqi or Chinese citizen is just as morally reprehensible as spying on an innocent American citizen. That being said, not all people feel as I do, and you are right, the legality of it all, unfortunately, hinges on how Americans are affected.
At least in most countries, this is just not the way it works, legally.
Every country has different rights for citizens and non-citizens.
For example, the US has held the 4th amendment does not apply to non-citizens who are not "part of the national community" (IE if a bunch of canadians came down and fished every weekend, you could search them however without violating the 4th amendment. If they lived here illegally, you couldn't).
It's not just the US of course, almost all countries are like this (the EU has broader protections for EU citizens than random other people, like US citizens living in the EU).
I don't remember all the details, and i certainly agree with "morally reprehensible", but you are suggesting a "natural rights" based approach, which, while common, but not universal.
> Every country has different rights for citizens and non-citizens.
The rights are inherent in the nature of the situation (i.e., humans living in a social order based on equality of individuals under the law). The scope of the protection of those rights varies from jurisdiction to jurisdiction (and vanishes entirely where jurisprudence is slave to political demagoguery).
The fourth Amendment isn't the source of the right, it guarantees that the right won't be abridged by government action. As the Constitution is defined by and for the people of the United States, that the protections "guaranteed" (in quotes because the guarantee has to be maintained by vigilance) don't extend to those who are not the people of the United States isn't logically surprising, but can remain somewhat disappointing (politically and ethically).
What I am stating is that "rights" are a necessity of creatures like human beings living in societies based on equality under the law. You can have national (and sub-national) jurisdictions that do not honor certain rights, but that doesn't make the concept of rights relative, it makes the ability to judge the jurisdictions by the protections they guarantee, and thus whether they are actually based on equality under the law.
They may be deemed "natural rights" by the nature of mankind living in what I will term "just" societies (where jurisprudence and justice coincide), but they are not "natural" in their springing forth from the natural sciences of physics, chemistry and biology.
There were a number of people involved in the Constitution of the US of A who did not want to enumerate the rights, knowing that they were not the government's to give and receive. The pragmatic reality of the day was a yield to legal codification, since most knew that a government not explicitly bound, was bound to implicitly violate those rights. The escape clauses were (probably, I'll let others debate that) the 9th and 10th amendments.
United States v. Verdugo-Urquidez - 494 U.S. 259 (1990) at 264-266
From the headnote:
"The Fourth Amendment phrase "the people" seems to be a term of art used in select parts of the Constitution, and contrasts with the words "person" and "accused" used in Articles of the Fifth and Sixth Amendments regulating criminal procedures. This suggests that "the people" refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community."
Thanks for this. The OP suggested that non-citizens inside the US aren't afforded the same Constitutional protections as citizens. I believe this is incorrect.
From the Wikipedia article about the case you cited [1]: "...Fourth Amendment protections do not apply to searches and seizures by United States agents of property owned by a nonresident alien in a foreign country. [emphasis mine]"
It is not incorrect.
Heck, it's even been tested on the bar exam as part of the MBE, using the canadian fishing example I gave, which is a real MBE question based on a real case (I am a bit too lazy to look it up).
This is how the case has been interpreted by every court to follow it. See US v. Guitterez, 983 F.Supp. 905 for a fourth amendment example from the 9th circuit.
Here is another from the fifth circuit:
UNITED STATES OF AMERICA v. ARMANDO PORTILLO-MUNOZ (i don't have cite handy)
"Portillo relies on Verdugo-Urquidez and argues that he has sufficient connections with the United States to be included in this definition of "the people," but neither this court nor the Supreme Court has held that the Fourth Amendment extends to a native and citizen of another nation who entered and remained in the United States illegally"
There are something like 2000+ cites to Verdugo, and and the general viewpoint of courts so far is as i said it is.
If you've got a court of appeals or SCOTUS cite to the contrary, where a court has held that they do apply, i'd love to see it.
Right that's the holding, but the dicta suggests that some non-resident, non-citizens (i.e. temporary visitors) also are unprotected by the fourth amendment.
Various lower court decisions have fleshed out what constitutes "substantial connections".
Yes, but that you can identify one right that governments can/should afford non-citizens and citizens alike doesn't mean that's true of all rights. Venomsnake was trying to identify the kind of right that it should be true for.
As a British citizen I have a right to not be tortured by the government (under A.3 HRA1998), and a right to NHS healthcare. The former (a negative right) is one the government should afford to the whole world. The latter (a positive right) is not.
Let's leave aside morality and focus on self-interest. Considerations of self-interest make FISA 702 an impresssively self-destructive piece of legislation for the US to pass and to see upheld in its courts. And I'm not talking about relatively nebulous things like sapping the US' moral authority to call for Internet freedom and so on, though they should be real concerns for Americans too. This is very straightforward.
The reason that foreigners want to have their contracts adjudicated in US courts, one of the main reasons they buy US real estate or buy US Treasuries and trade the NYSE for much lower expected returns than they would demand elsewhere, is that they have faith in the rule of law in the US. Not perfect faith, but real faith. Not faith in the moderation and good intentions of the US (or CA, NY or MD) government (though they have some of that too) but faith that their US interests are protected in law by things like the Takings Clause of the US constitution - and usually by statute law as well - even while they go on living outside the US as non-citizens of the US. Nor is this something that matters only to foreigners: this trust from foreigners is one of the major pillars of the US' wealth and power. Look at places like the PRC or the UAE http://en.wikipedia.org/wiki/DIFC_Courts which are avidly trying to cultivate an image as a place where your real estate won't be swiped and your court case won't be nobbled to favour a crony.
Now, slowly but steadily, these non-resident aliens (like me) are cottoning on to what FISA 702 means for them. And what it seems to mean is that the rule of law doesn't apply to their Facebook or Google accounts the instant the Federal government chooses to get involved. As a non-lawyer reading FISA 702 http://www.govtrack.us/congress/bills/110/hr6304/text the remarkable thing is that it's not establishing a process where the US government presents a vague counter-terrorism or national-security rationale to a secretive, questionably-independent court. It seems to be a process where the US government can help itself to anything it wants from any specified non-resident alien without even having to state any motivation at all, and in which the FISC court's only role is to confirm that the targets (probably!) aren't US citizens or residents. Does the government feel like doing a spot of industrial espionage on your company's email or file uploads? Sam's your uncle. There aren't any reasons even in principle why the FISC might refuse to issue the FISA order - and the government is spared even the embarrassment of having to state its intentions in court. Your internet company could appeal, but the whole process seems to work on the basis that as a non-resident alien you'll have no applicable Fourth Amendment rights, and 702 seems to clear aside any rights you might have under statutory law ("Notwithstanding any other provision of law"). And in any case what information about the Federal government's interest in you would Google or Facebook have to base an argument on? And once it has your data the US seems to be free to do nearly anything it wants with it - share it with your US competitors? Why not? - unless it tries to take the data to court. (See sec. 106 http://www.gpo.gov/fdsys/pkg/STATUTE-92/pdf/STATUTE-92-Pg178... )
Now it's true that CIA could (and maybe does) attempt to hack the EADS servers in (I'm guessing) Toulouse in search of engineering goodies to share with Boeing, with just as much impunity under US law. But at least EADS has a chance to try and secure its systems from hacking attempts, instead of being instantly defeated the moment the US decides to file some paperwork, and it can get whatever benefit it can from the fact that the industrial espionage would be illegal under French law. So FISA 702 seems to completely reverse the normal position: in legal terms your person and your property are usually better protected from the US government inside the US than outside it. And of course the final touch is that you'll probably never get to hear about any of the intrusions, so even if you're the world's richest person or organisation with all the best lawyers they won't be doing you any good. It seems that the only legal restraint on the US' behaviour with the online data of non-resident aliens is that it can't request a wide-ranging search like "everyone in Pakistan who searched for 'X'", though even that may not be the case: https://news.ycombinator.com/item?id=5845878 .
(Again IANAL. If someone qualified can correct important errors in my understanding of FISA I will be very grateful!)
So, imagine that the US Congress passed a law permitting the Federal government to expropriate any US property for almost any purpose from any non-resident alien at any time, for no particular reason, without compensation or even notice. Throw in some very effective judicial secrecy into the process established by law as well. Provide some unverifiable assurances that the Federal government will probably only choose to use the law against very bad people. Imagine that this law appeared to be holding up nicely against Congressional and legal challenge, at least for now. And please bear in mind that no non-resident alien would give a hot damn about which intriguing Constitutional arguments were being used to (rightly or wongly) deny them the protection of the Fifth Amendment. How would Wall Street, US real estate and the broad US economy be affected? It's not a perfect analogy at all, but it gives you some idea of what may be coming down the line for US internet companies.
>>Every country has different rights for citizens and non-citizens.
And in some they are almost entirely equal if not better. (Social security, but it's a bit over the top here :/)
Well they can't vote of course, but that's about it.
Is it possible, then, that my government can get hold of my private data without technically spying if another country (which could've been spying on me legally, as I'm not its citizen) would provide it?
Oh yes, and what I understand it is par for the course that intelligence agencies do trades with each other for that exact reason. Either explicitly or implicitly (As in - We know you operate in our country, but we'll turn the blind eye. Just remember to alert us, if you happen to find anything suspicious.)
While true, there is this bit in the Declaration of Independence about inalienable human rights. Unfortunately that doesn't seem to be a legal document anymore.
I think a better way to look at it is that rights are cultural, but that if we are serious about living in a decent and respectful world we should in our actions extend to others the rights we want to have ourselves.
Does free speech extend to advocating going out and killing all African Americans at a white supremacist rally? In the US it does, but only because of our bad experiences during the Red Scares. In Canada or the EU it wouldn't. What right do either side have to force their definitions on the other?
This being said, the argument can easily be made that spying is somewhat different. The general fear is that since governments monopolize violence their actions towards spying on their own must be more restrained than spying on others because the dangers in adopting a "show me the man and I will find you the crime" apply at home to a much greater degree than they apply abroad.
we should in our actions extend to others the rights we want to have ourselves
That belief is cultural too - it just so happens that almost every culture has independently arrived at it http://en.wikipedia.org/wiki/Golden_Rule is a fascinating read.
I think there is a natural necessity that when you accept someone as an equal partner in a process, you assume they are like you are.
It goes the other way in not so great ways also that we tend to project those things we do not like about ourselves onto our enemies.
If someone accuses everyone else of being a thief, expect that the accuser is the one responsible, but the person who respects everyone is probably respectable himself.
What you quoted is actually the Silver Rule, which deals in negatives. It's also much easier to consistently apply without people hating your guts for being a condescending, paternalistic imperialist.
