National Security

Intel Outside

Could the NSA just use foreign governments to spy on Americans?

Last week's revelations about the scope of the National Security Agency's surveillance shocked many Americans, who learned that the top-secret agency was keeping records on literally every time they picked up the phone -- recording who they called, for how long, and their location when they called. But the concern was not limited to Americans. Edward Snowden's leaks also disclosed that the NSA had put in place the technology to sweep up large amounts of foreigners' phone calls, emails, social networking, and Internet usage. Citizens abroad immediately began objecting that their rights were being infringed by this U.S. program.

The U.S. response on both fronts is that no rights have been violated. On the domestic front, the Obama administration notes that the Supreme Court long ago ruled that Americans have no Fourth Amendment protection in the phone numbers they call, because when they pick up the phone they necessarily share that information with their phone provider for billing purposes. They therefore assume the risk that the phone company will turn around and give the information to the government. As such, the Court ruled, they have no reasonable expectation of privacy vis-à-vis the government obtaining that information from the phone provider. This "third-party disclosure" rule has largely eviscerated Fourth Amendment protection in the digital age, because virtually everything we do shares information with a third party these days. When we browse the Internet, dial a phone number, make a credit or debit card purchase, use EZ Pass on the highway, send an email, or carry a cellphone, we are necessarily sharing information with our "service providers." Under the Supreme Court's rule, we have no constitutional protection against the government getting that information from those providers. And with that information, the government can construct a picture of our private lives more intimate than even our family members have.

But this is not the only loophole in privacy protections. The Supreme Court has also ruled that the Fourth Amendment does not extend to searches of foreigners overseas. The Court announced that rule in a case involving a search of a Mexican's home in Mexico. But as with the third-party disclosure rule, the digital age transforms this principle into a massive loophole. Because of modern communications technology and computer capabilities, we can now sweep up and analyze massive amounts of electronic communications. The NSA could monitor every phone call, email, and Internet search in Pakistan, Afghanistan, the United Kingdom, or Canada without any constitutional checks whatsoever.

Why should Americans care? Because what's sauce for the goose is sauce for the gander. In international relations, reciprocity is a core principle. If we can monitor British citizens' emails and Internet use without meaningful legal limits, why should the British be restrained in their monitoring of our emails and Internet usage? And once a foreign government has obtained such information about our private activities, no law prohibits it from sharing that information with our government. As long as our government did not instigate the acquisition of the information, there is no bar under U.S. law on our government getting it from another government and using it against us.

Again, the modern era makes all of this much more feasible. Electronic communications travel around the world on cables that often pass through many different countries. In this sense, our communications are only as protected as they are in the least protective jurisdiction through which they pass -- and one generally cannot even know through which countries one's communications are likely to pass.

Developments in communications technology have brought the world closer together and have put a previously unimaginable wealth of information at our fingertips. This is all to the good. But those same developments have created the potential for vast loopholes in our privacy protections. Without constitutional constraint, the U.S. government can obtain from private companies data about our daily digital habits that can reveal what doctors we see, what magazines and websites we read, where we travel, and with whom we associate on a 24/7 basis. And computers make it possible to collect and analyze that data for "suspicious" behavior. And because foreign nationals abroad enjoy no protections whatsoever, Americans are likely to be fair game to foreign government surveillance operations directed at us.

What's needed is a comprehensive reevaluation of how to preserve privacy in the globalized digital age. Citizens should be free to use the Internet and maintain their privacy from unreasonable incursions. Governments must be free to conduct searches of online activity, to be sure, but those searches in the virtual world should be guided by the same principles that we have long lived with in the real world: Namely, the government should not intrude on private communications unless it has some particularized basis for suspicion. Sweeping dragnets of every American's phone use, or of every Pakistani's email traffic, are neither necessary nor justified.

To achieve these ends will require the concerted efforts of Congress and the Supreme Court, both of which can and should shore up protections for online communications. But in the long term, what is needed is a global understanding of the values of privacy and the importance of enforceable limits on surveillance. The globalized world offers untold opportunities for information sharing and communications across national borders. But it also presents untold risks from foreign government surveillance, cybercrime, and hacking. Striking the right balance between privacy and security on a global scale, and with respect to information routinely shared with private third parties, will not be easy. But the vast loopholes that exist today, exploited by the NSA, cannot be the right answer. We all have an interest in ensuring that developments in technology do not render privacy as outmoded as the eight-track player.

Oli Scarff/Getty Images

Democracy Lab

Iran's Big Yawn

The challenge for Iran's supreme leader: How to make a sham presidential election look like a real one.

None of Iran's eight presidential candidates were prepared for the public humiliation they suffered during the election's first televised debate on May 31. The program's moderator informed them that he would be asking them yes-or-no questions - "to liven up the discussion," as he put it. (In a few cases, somewhat more daringly, he offered the option of multiple choice answers.) A few of the candidates refused to comply, complaining that the questions were too vague. Predictably enough, the debate-that-wasn't-quite-a debate quickly became fodder for social media satirists. Perhaps as a result, in the third debate in last week, the candidates were granted much greater leeway to criticize each other. Looming over the proceedings, however, was a large digital clock tracking how much time each one of them spoke -- clearly an effort to limit the time in which they could actually reach out to voters.

The spectacle of the anesthetized debates underlines the predicament in which Iran's ruling elite now finds itself. The presidential election is one of the few realms in which a certain degree of political competition has been allowed to exist over the years. And even though the country's supreme religious leader, Ayatollah Ali Khamenei, has the final word on state matters (and even though many Iranians believe the vote on Friday will be rigged), voters still see the elections as their one chance to express their preference for more moderate policies. They know that the president sets the tone for domestic and foreign policy even though he has little constitutional power compared to Khamenei. So they know that this is a contest that matters.

As a result, the Iranian presidential election has always had the potential to introduce a certain degree of unpredictability -- as happened in 2009, when hundreds of thousands of disgruntled voters took to the streets to protest alleged tampering with the election results. These events compelled Khamenei to throw his political capital into the fray in defense of President Mahmoud Ahmadinejad (a figure he had backed in the 2005 elections in order to sideline moderate politicians). Now Ahmadinejad's term is over, and he's leaving office for an uncertain future.

Khamenei and his underlings clearly don't want to see a repeat of the turmoil of four years ago. So last month they made their most dramatic move yet: The watchdog Guardian Council barred Akbar Hashemi Rafsanjani, a founding father of the 1979 revolution, from running in the election. The Council, a group charged with interpreting the constitution, supervising elections, and approving candidates, is controlled by Khamenei. It has cleared eight candidates, among them two low-key independents. Two of the candidates withdrew this week -- one of them a moderate who asked his voters to throw their support to Hassan Rowhani, the one reputed reformist left in the group.

The Guardian Council's rejection of Rafsanjani sent shock waves through the country. Ridiculing the disqualification, parliament member Ali Motahari said [in Farsi] that Ayatollah Ruhollah Khomeini (the leader of the 1979 Iranian Revolution) would probably be barred from the race if he tried to run today. "The system is becoming more authoritarian by the day," said former member of Parliament Fatemeh Haghighatjoo. "Mr. Khamenei doesn't realize that he is making himself and the regime more vulnerable." She noted that Khamenei cannot, in the long term, run this regime alone.

Spooked by memories of the 2009 protests, the regime is once more resorting to police-state methods to cripple the oppositions' ability to attract voters. Government forces patrol the streets, looking for what they refer to as "sedition." Hundreds of activists remain imprisoned, including two reformist candidates from the 2009 race who are under house arrest. Campaigners were summoned for questioning this month and parole rights of imprisoned activists have been withdrawn. The government has slowed the Internet to a crawl and blocked certain websites. It's gotten so bad that even the conservative media have been complaining about censorship.

Iranian presidential election results are notoriously hard to predict. Given what's already happened, though, Iranians can hardly be blamed for feeling that this year's vote is already an anticlimax. It's hard to overestimate the significance of the act of barring Rafsanjani -- one of very few senior Iranian figures who, like Khamenei, can trace his political career back to the 1979 revolution.

By barring Rafsanjani, the regime has completely lost the ideological hegemony that kept it intact. Rafsanjani had been a close aide to Khomeini and played an instrumental role in elevating Khamenei to his position. Without him, Khamenei no longer derives his religious legitimacy as the country's supreme leader from senior clerics. Instead, he entirely relies on the Revolutionary Guards, the armed force set up in 1979 to protect the Islamic regime.

"Khamenei has rejected his own legitimacy by disqualifying him," said Mehdi Khalaji, a senior fellow at the Washington Institute for Near East Policy. "He has undermined the Islamic Republic and senior clerics are worried now that he has turned the country into a military state."

Since his appointment in 1989, Khamenei has tried to consolidate his grip on power by alienating the clerics who appointed him. Fearing that as his previous position was a mid-ranking cleric he could never command their respect, Khamenei invested heavily in the Revolutionary Guards. Over the years, he switched his support base to the Guards and its militia wing, the Basij, the two groups that have played a major role in clamping down on the opposition.

Khamenei can certainly rest content. With Ahmadinejad and Rafsanjani both out of the way, he can almost certainly count on a more manageable candidate ending up as president. The only remaining wild card is Rowhani. In an effort to resist political isolation, Rafsanjani and ex-president Mohammad Khatami, a lodestar of the moderates, threw their support behind Rowhani this week to mobilize the pro-reform vote behind him. But the powers-that-be don't appear eager to give Rowhani enough space to challenge their grip. Earlier this month government forces broke up a Tehran rally where Rowhani was addressing his supporters. His leading campaigners were arrested.

If things continue like this, the main problem for the government will be making sure that the election doesn't look like too much of a farce. Khamenei has called for a large turnout, and street banners urge voters in the capital to go to the polls and create "an epic." But not everyone believes in the sincerity of these statements, since a large turnout is likely to make it harder for the regime to keep a lid on discontent. In 2009, government forces beat people outside the polling stations to turn them away, and the government closed the polls early to keep the turnout under control.

A clear favorite in the election has yet to emerge; any of the candidates has the potential to emerge victorious. What's clear enough right now, though, is that it's ordinary Iranians who will end up the losers.

MEHDI DEHGHAN/AFP/Getty Images