How could it be legal for Americans in Israel to have less privacy protection from US National Security Agency spying than other US citizens? According to top-secret documents produced by Edward Snowden and distributed by the media, the NSA’s official rule is not to spy on the communications of US citizens whether they reside in the US or abroad.
However, reports mostly by The Guardian and The Washington Post dating back to August, including a new report in the Guardian on Wednesday, suggest that for Americans living abroad, this rule may have at least two gaping holes.
First, since August we knew that the NSA can spy on any US citizen communication with a foreign target, and the Snowden documents indicate that any foreign communication is presumed to be, or only needs to meet a very low standard to be declared, with a foreign target.
So US citizens living abroad may be presumed to be foreign targets and their communications collected.
While highly controversial, there is no easy resolution to this issue, which affects all US citizens abroad, not just in Israel, other than trying to get Congress or the president to change the rules.
Second and possibly a larger problem for US citizens in Israel, is a five-page document, titled Memorandum of Understanding between the NSA and its Israeli counterpart (the ISNU), disclosed on Wednesday, which indicates that the US sends “unminimized” communications to Israel, including that of US citizens.
“Unminimized” means ignoring the various safeguards the NSA usually follows when analyzing these communications, including a process of filtering out all information not relevant to national security.
Although the document formally obligates Israel to observe the same safeguards, it does not cite any enforcement mechanism or concrete “teeth” to ensure compliance (though Israel does have several obligations to report certain issues to an NSA liaison).
So what is really stopping Israel from misusing this information, especially where it involves US citizens who are dual-Israeli citizens? After the fact, someone could complain that the US had put its citizens in a risky position, but the US would not technically have violated anyone’s rights, having instructed Israel to observe the US Constitution’s Fourth Amendment protections of privacy rights.
How about suing Israel for violation of privacy rights or for its agreement with the US? Not an option. The document itself is technically only a letter of intent, not a contract or an enforceable agreement.
Letters of intent or understanding, without a later final contract, are just that, expressions of hope about a relationship between two parties – but not binding.
In fact, to keep the agreement classified and away from international judicial bodies, the document specifically says it creates no “legally enforceable rights,” is not an “international agreement” and is not “legally binding” under “international law.”
So the US may be accused of acting irresponsibly or rashly and Israel may have violated the intent of the newly revealed document, but no one’s privacy rights will have been violated and certainly no one has a good shot at a lawsuit.
Luckily that is probably not the end of the story with the Israel issue.
The truth is that the US probably did not sign a binding document with Israel with official “teeth” because it does not need to.
Israel is on a very short list of countries which receive massive intelligence information from the NSA.
If Israel abuses the relationship, the US can just turn off the faucet.
The one extra-legal scenario which still would likely not be covered would be where the NSA is winking at Israel to look under a rock which the NSA itself is not allowed to check.
While this does not prevent invasion of US citizens’ in Israel privacy on an individual, small-scale basis, it certainly makes it likely that, even without the shadow of a lawsuit, Israel will follow the privacy rights provisions carefully.