New York University Public Law and Legal Theory Working Papers

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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. Moreover, incidental collection and inter-governmental cooperation give people little protection against surveillance by their own governments as well.

There is growing support for plugging these loopholes by a multilateral agreement that would establish internationally applicable safeguards. The present paper 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 leaving all nations free to go their own way. Political and economic dynamics render needed reforms more likely through U.S. domestic law than through international agreements, and such reforms would benefit not only Americans but also the world at large.

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