An international right to privacy? Be careful what you wish for

Abstract

The digital era upends many traditional privacy safeguards. Nations now have unprecedented capacity to spy on global communication, and yet they typically acknowledge no legal restrictions on their right to surveil non-citizens outside their borders. People now have little protection against spying by foreign countries, and the realities of incidental collection and inter-governmental cooperation can put their private communications in the hands of their own governments as well. Privacy advocates recognize the need to plug this loophole, and there is growing support for doing so by a multilateral agreement that would establish internationally applicable safeguards. The present article concludes that such an agreement, far from strengthening global privacy protection, would almost certainly weaken it. Even among Western democracies, the search for transnational common ground and the institutional priorities of the negotiators would be inimical to a privacy-protective accord. Paradoxically, privacy will be better served by embracing “American exceptionalism” and leaving all nations free to go their own way. The paper discusses the political and economic dynamics that render needed reforms more likely through US domestic law than through international agreements, and the reasons for optimism that such reforms would benefit not only Americans but also the world at large.