Regulating Foreign Surveillance through International Law

Regulating how governments conduct foreign electronic surveillance against another state’s citizens poses a complex challenge. In the wake of Edward Snowden’s leaks in 2013, the extent to which governments conduct surveillance of foreign state leaders and citizens became strikingly clear. This chapter argues that, although states traditionally have been loath to regulate their intelligence activities using international law, that body of law offers an important avenue by which states can reduce criticisms stemming from human rights and other groups, help set the agenda for the future of foreign surveillance, and respond to foreign and domestic fears that government surveillance is unconstrained. The chapter describes the variety of pressures states face to modulate their foreign surveillance, explains some of the benefits that states may accrue by doing so, and suggests six procedural norms around which certain Western democracies may be able to coalesce.