A Fourth Amendment for foreigners?

One way for the Obama administration to draw a line under the NSA scandal would be to embrace a new international initiative to take privacy rights more seriously. The Fourth Amendment promises that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” How might the spirit of that promise be extended to citizens of other countries?

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Once you start thinking about legal limits on U.S. foreign snooping, complicated questions arise. Would such limits apply to all foreigners, or just to certain countries? Would they apply only to democratic countries that offer human-rights protections to their own citizens? Would they apply to allies, as a reward? Would the United States insist on reciprocal guarantees? And how would any such pledges be credible, given that intelligence is all about doing in a deniable way what you pretend you’re not doing?

“Are there to be two classes of people in society — those who ‘deserve’ rights, and have them, and those who do not?” asks my friend Garrett Epps, a professor of constitutional law at the University of Baltimore, in discussing the Fourth Amendment in his new book, “American Epic,” which examines line by line what the Constitution actually says. His question of who’s entitled to privacy protection is at the heart of the NSA conundrum.

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A less complicated post-Snowden reform under White House consideration is to apply a much more rigorous cost-benefit analysis to intelligence-gathering in friendly countries.

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