NSA targets foreigners, catches Americans: Column

• In the context of NSA Internet surveillance%2C what does %22foreigner%22 even mean%3F
• If the NSA can determine that you are a %22U.S. person%2C%22 your communications receive some protection.
• However%2C leaked documents have shown that the NSA collects the Internet communications of Americans%2C too.

You may have heard this before: the United States is a country of immigrants. Given that so many of us are foreign-born or the children of people from other countries, how should we respond to the recently revealed programs of mass warrantless NSA surveillance, and in particular the repeated governmental assurances that the Internet communications being collected and searched are only those of "foreigners"?

After all, many of us were foreigners not that long ago.

As the White House considers what (if any) restrictions should be placed on the NSA, we should ask anew: In the context of NSA Internet surveillance, what does "foreigner" even mean? According to the Washington Post, from leaked documents we know that security analysts "key in 'selectors,' or search terms, that are designed to produce at least 51% confidence in a target's 'foreignness'" before his/her Internet traffic can be intentionally (as opposed to incidentally) collected. In response, the Daily Show's John Oliver commented, "That's basically flipping a coin, plus 1%!" Even after The Guardian disclosed some more leaked details, including a drop-down list of "foreignness factors," many are left wondering, like Oliver, "How can you tell accurately between an American and a foreigner?"

Immigrants who come from repressive countries that use governmental surveillance may be even more inclined to wonder. Some have foreign-sounding names; have foreign accents; communicate more or less frequently with people abroad, often in foreign languages. What does that mean for their communications?

It depends. If the NSA can determine that you are a "U.S. person" (i.e. citizen or green-card holder) or that you're simply lucky enough to be on U.S. soil, your communications receive some protection. However, if that determination can't be made, you are presumed to be a foreigner.

That makes sense, in a way: after all, the overwhelming majority of those who live outside the borders of the U.S. are not U.S. citizens. The flip side, of course, is that, as Georgetown law professor David Cole wrote recently, "we [Americans] are all foreigners from the standpoint of every other nation." As we find out that some other countries, such as the U.K., run their own surveillance programs (similar to ours) and share data with our own government, it seems like the focus on "foreigners" may really be a smokescreen, a distinction without a difference. To the U.K. government, Americans are foreigners. If the NSA is allowed to use data collected by the U.K. and vice-versa, then we are all treated like foreigners, even within our own borders.

But even if multinational information-sharing agreements are not being used to circumvent domestic privacy laws, leaked documents have shown that the NSA itself collects and analyzes the Internet communications of vast numbers of Americans, too. In July, The Guardianreported:

In recent years, the NSA has attempted to segregate exclusively domestic US communications in separate databases. But even NSA documents acknowledge that such efforts are imperfect, as purely domestic communications can travel on foreign systems, and NSA tools are sometimes unable to identify the national origins of communications. Moreover, all communications between Americans and someone on foreign soil are included in the same databases as foreign-to-foreign communications, making them readily searchable without warrants.

Many Americans have extensive contacts with people in other countries and often travel across borders — while our Internet communications move around the world even more than we do. So the distinction drawn between the "us" who are protected and the "them" who are subject to "more aggressive" surveillance is a misleading invitation to let down our guard.

The focus on foreigners obscures the real debate that we need to have. As Professor Cole notes, "The easy way to balance privacy and security is to sacrifice the privacy of someone else in order to benefit one's own security." However, given the nature of the Internet, the presumption of foreignness, and the permissible uses of communications collected "incidentally" or overseas, that easy way simply doesn't exist in our interconnected world. We are a country of immigrants and travelers: both the security and the privacy being balanced are our own.

Irina Raicu is the Internet Ethics Program director at the Center for Applied Ethics at Santa Clara University.

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