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Data Privacy and Inmate Recidivism

When one thinks of prison, the concept of privacy does not generally come to mind. Indeed, the Panopticon imagined by English philosopher Jeremy Bentham—a prison designed in such a way that no inmate could be certain whether he was currently being watched—has become reality.[1] While Bentham envisioned a centralized “inspector” with the ability to peer into the prison cells that surrounded him,[2] modern Internet-connected technologies have allowed today’s inspectors to surveil inmates regardless of their physical proximity.

But while the introduction of Internet-connected technologies into correctional facilities has enhanced the surveillance capabilities of the watchers, it has also provided value to the watched. The introduction of video-messaging services, for example, has allowed inmates to communicate with loved ones who are unable to travel to visit in person.[3] Indeed, the private companies that obtain government contracts to introduce these Internet-connected technologies into correctional facilities often argue that their services can reduce recidivism rates by providing inmates with the opportunity to engage in such communication services.[4] A close examination of the privacy policies offered by these correctional contractors, however, reveals how efforts to reduce recidivism rates are undermined.

As this Essay will explain, correctional contractors collect sensitive data about inmates and the loved ones with whom they communicate. If this data is stolen or sold it can result in substantial harm. Allowing mistaken or misleading data to end up in the hands of an employer or would-be creditor, for example, can undermine efforts to successfully integrate former inmates back into society. Similarly, even accurate data that links individuals with their prior criminal acts can result in former inmates facing burdens in credit and labor markets long after they have paid their debt to society. As research continues to examine the cyclical relationship between incarceration and poverty, placing additional burdens on former inmates in credit and labor markets means placing additional burdens on society’s interest in reducing recidivism rates and lifting families out of poverty.[5] The privacy policies currently offered by correctional contractors do not protect against these problems. This Essay therefore calls on the Federal Communications Commission (“FCC”) to correct such harms.

Having recently set out to establish the maximum rates that correctional contractors can charge inmates for telephone services,[6] the FCC is the appropriate entity to regulate the Internet services that these correctional contractors also provide. Indeed, the FCC has already sought comment on “[t]he use, costs and rates of video visitation and other advanced inmate communications . . . and whether these services could be used to circumvent traditional [inmate calling services] rates.”[7] While establishing rate caps for Internet services is an important step, this Essay calls on the FCC to regulate Internet services within correctional facilities on two additional fronts. First, the FCC should prohibit correctional contractors from selling the data they collect to private third parties. Second, the FCC should establish clear liability guidelines holding correctional contractors liable for data breaches.

Part I will examine the current landscape in which these correctional contractors have introduced their services into correctional facilities. Doing so reveals the financial incentives that state and local governments have to grant contracts with inadequate privacy policies, elucidating the need for federal intervention. Part II will then address how current privacy policies offer inmates and their loved ones inadequate protection, and propose how the FCC can act to require increased privacy protections.

I. Landscape

Many correctional facilities now permit inmates to access the Internet.[8] One interest that state and local governments have in doing so is that permitting such access can reduce recidivism rates. Permitting access to online educational tools, for example, can provide inmates with marketable skills they can use to secure stable employment after their release.[9] Similarly, allowing inmates to communicate with loved ones can help foster supportive relationships.[10] Indeed, the FCC has acknowledged that “contact between inmates and their loved ones has been shown to reduce the rate of recidivism.”[11]

State and local governments, however, also have a troubling incentive to introduce these services: Correctional facilities often supplement their budgets with kickback payments based on a correctional contractor’s profits.[12] Indeed, these payments appear to be so substantial that some correctional contractors have sued to stop the implementation of the FCC’s rate caps on telephone services, arguing that the caps are too low to allow the contractors “to recoup the . . . payments that they are contractually obligated to make [to correctional facilities].”[13] Because correctional contractors can increase their profits by selling their customers’ data, correctional facilities have the financial incentive to approve privacy policies that allow for such sales, thus undermining efforts to reduce recidivism rates. Part I will address this financial incentive in greater detail and outline the authority under which the FCC can regulate this relationship.

A. Current Legal Framework

Since Justice Harlan’s announcement in Katz v. United States that the Fourth Amendment protects an individual’s “reasonable expectation of privacy,”[14] the Fourth Amendment has offered a constitutional grounding for privacy protections. As time would reveal, however, this constitutional grounding was rather unsteady, and the Court has since resorted to crafting an intricate web of context-specific rules to define “reasonable expectation of privacy.”[15] One such rule addresses how the Fourth Amendment applies in correctional facilities. In Hudson v. Palmer the Court held that inmates have no “reasonable expectation of privacy in [their] prison cell entitling [them] to the protection of the Fourth Amendment against unreasonable searches and seizures.”[16]

As the Court made clear in Palmer, correctional facilities are not typically thought of as privacy havens, nor should they be. The Court in Palmer, however, did not declare that inmates have no legitimate interest in privacy. Instead, the Court simply held that any privacy interest that an inmate might have would need to be derived from a source other than the Fourth Amendment. This Essay therefore suggests a regulatory framework designed to offer privacy protections where the Fourth Amendment fails to do so.

B. The Need for Federal Regulation and the FCC’s Authority

As state and local budgets came under greater scrutiny during the Great Recession, correctional facilities increasingly sought new sources of funding.[17] Correctional contractors provided one such source, offering to pay correctional facilities a portion of their profits through kickback payments.[18] These kickback payments led state and local governments to develop a financial incentive that directly conflicts with the interests of inmates and their loved ones, as well as society’s long-term interest in reducing recidivism rates. This conflict has resulted in a need for federal action, a need that the FCC began to fulfill in October 2015 when it set out to cap the rates at which correctional contractors can charge for telephone services.[19] The FCC should similarly regulate Internet services—services often provided by the same companies that provide telephone services in correctional facilities.[20]

Though fundamental principles of federalism require a pragmatic approach to considering federal regulation of state correctional systems, Internet services are hardly an intrastate matter. Not only do the communications themselves travel across state boundaries, the effects on inmates are not contained within the state in which inmates are incarcerated. As the federal agency tasked with regulating Internet service providers, the FCC has the authority to regulate Internet services provided by correctional contractors. The FCC’s authority to do so derives primarily from Section 706 of the Telecommunications Act, which requires the FCC to “encourage the deployment . . . of advanced telecommunications capability to all Americans.”[21] The FCC relied on Section 706 in promulgating rules regarding “net neutrality,” a principle of Internet governance that requires Internet service providers to handle Internet traffic similarly regardless of its source.[22] In Verizon v. FCC, the U.S. Court of Appeals for the D.C. Circuit largely agreed with the FCC’s interpretation of Section 706.[23]

Section 222 of the Communications Act also provides the FCC with the authority to enforce privacy standards.[24] Section 222 requires “[e]very telecommunications carrier . . . to protect the confidentiality of proprietary information of, and relating to, . . . customers.”[25] The FCC recently invoked its authority under Section 222 when requiring one Internet service provider to pay a substantial civil penalty and to implement data security safeguards in the aftermath of a data breach.[26]

II. Data Breaches and Selling to Third Parties

By monitoring inmate communications, correctional contractors claim that their proprietary software can help correctional facilities analyze communications to “expose suspicious patterns.”[27] While the government may have a legitimate interest in contracting with correctional contractors to perform these services, Part II will examine the type of data these contractors collect, and how sharing this data with private third parties—whether it be involuntarily through a data breach, or through a voluntary transaction—can undermine efforts to reduce recidivism rates.

A. What Correctional Contractors Collect

Correctional contractors collect a wide range of data. One correctional contractor, for example, collects the “date of birth, [and] social security number” of its customers.[28] Another correctional contractor collects “[c]ontact information such as name, address, telephone number or email address,” as well as “[c]redit/[d]ebit card information,” and “the Internet Protocol (IP) address used to connect [a] computer or any internet-accessible device to the internet as well as login and password information.”[29] Data pertaining to the content of communications is also collected, with one correctional contractor stating it reserves “the right to access, read, preserve, and disclose any information” sent through their emailing service,[30] as well as the “right to view, record, preserve, and disclose any information” contained in communications sent through its video-messaging service.[31]

Not only do correctional contractors collect this data about inmates, they also collect data about loved ones outside of correctional facilities. Indeed, correctional contractors are “able to identify the location of [a loved one’s] mobile device,” and may share “location information . . . with correctional facilities or other law enforcement personnel upon their request.”[32] A third correctional contractor notes that they record “the websites . . . visit[ed] before or after” loved ones use their service.[33]

Collecting this type of sensitive and valuable data not only makes correctional contractors a target for hackers, it also means that these contractors have data that third parties are willing to pay for.[34] As Section II.B illustrates, although sharing this data with private third parties can undermine efforts to reduce recidivism rates, correctional contractors are currently free to do so.

B. Current Privacy Policies Are Inadequate

Correctional contractors can share the data they collect about inmates and their loved ones quite freely. One correctional contractor’s privacy policy states that “[w]e may use information collected from or about you . . . to send you . . . promotional materials from our marketing partners and other third parties; to deliver targeted display advertisements . . . [and] for any other business or marketing purposes that are not inconsistent with the terms of this Privacy Statement.”[35] Another correctional contractor notes that they “do not sell, trade, or otherwise transfer to outside parties [customer’s] personally identifiable information,” except with “trusted third parties who assist [them] in . . . conducting [their] business.”[36] Such language is opaque, and might be entirely circular if the correctional contractor’s very “business” includes selling customer data in the first place. The appropriate policy question to ask, however, is not whether a specific correctional contractor is currently selling customer data, but whether correctional contractors should be in the position to freely do so in the first place. Current market conditions leave correctional contractors in such a position—with some correctional facilities beginning to replace in-person visitation hours with video-messaging services.[37]

This growing trend to replace in-person visitation hours with video-messaging services leaves inmates and their loved ones with little choice but to agree to the privacy policies offered by correctional contractors.[38] These families are often poverty-stricken, a fact raised in support of the FCC’s objective to establish rate caps for telephone services.[39] Similar to how charging poverty-stricken families exorbitant prices for telephone services can increase their financial difficulties, requiring these same families to agree to the privacy policies currently offered by correctional contractors can create additional burdens on them in credit and labor markets. These burdens can develop as a result of sharing either inaccurate or accurate data.

Data collected by correctional contractors can be inaccurate as a result of at least two issues. First, data might simply be incorrectly handled or labeled. This is of increased concern when it comes to data collected in jails, where inaccuracies may result in inmates being unjustly associated with crimes they have not been convicted of.

Second, conclusions drawn from underlying data can be inaccurate. This might result from the content of communications between inmates and their loved ones containing inaccuracies, or from questionable analysis performed after collection. One correctional contractor, for example, advertises that its product “enables correctional facilities to easily share with other facilities . . . to help find common phone numbers, expose larger gang networks, and generally provide the ‘big picture’ of the communications and interactions among inmates and their associates.”[40] If an inaccurate conclusion is shared with third parties, it can unjustly stigmatize inmates in credit and labor markets. For example, inaccurately concluding that an inmate is associated with gang networks can make it more difficult for them to secure employment after their release.[41]

Consider the example of a job applicant in Arkansas who had incorrect data shared about her indicating that she was charged with the “intent to sell and manufacture methamphetamines.”[42] Not only did this data result in her being denied employment, it prevented her from renting an apartment and even from obtaining credit to purchase a dishwashing machine.[43] Although the company that originally misreported this data corrected their records, the data had already been sold to other companies who “did not necessarily follow suit.”[44] As more businesses turn to “data-driven” solutions, the market in which data is sold has become increasingly complex—with a correction of one company’s records not necessarily resulting in a correction of the records held by any number of companies that have since obtained derivative copies of the underlying data.[45] Sharing this type of sensitive data with employers, creditors, and landlords can leave former inmates unable to successfully integrate back into society.[46]

While inaccurate data presents one set of issues, additional issues arise even when accurate data is shared about a former inmate.[47] By creating an electronic record linking a former inmate with their incarceration, former inmates can find it increasingly difficult to distance themselves from the prior criminal acts for which they have already been punished.[48] This is of particular concern in light of the difficulties involved in unraveling the complex web of companies that sell and resell data. While some states have instituted “ban the box” laws that prohibit employers from inquiring into a job applicant’s criminal record until later in the hiring process,[49] such laws are rendered ineffective where a simple Google search can reveal such information, or where private databases that cater to employers use such information as part of the database’s underlying score of job applicants.[50] One must question the desirability of a system where former inmates are punished long after they have formally served their sentence, especially where the government has an interest in reducing the likelihood that such prolonged punishment occurs. In part as a response to this type of problem, the Court of Justice of the European Union held that E.U. citizens have a right to request that search engines remove links about them that are inaccurate or even “irrelevant.”[51]

This “right to be forgotten” requires search engines to “assess deletion requests on a case-by-case basis” to determine if a given link must be removed under E.U. law.[52] While such a regime might prevent a former inmate from being continually denied credit and employment opportunities, the First Amendment likely prohibits U.S courts from finding a similar right.[53] The FCC, however, is able to limit a correctional contractor’s ability to sell this data as a precondition to being awarded a government contract. Section II.C will outline how the FCC should establish such a precondition.

C. How the FCC Can Protect Privacy

Just as the FCC established boundaries within which companies may contract with correctional facilities to provide telephone services, the FCC should establish similar boundaries regarding Internet services. In addition to establishing rate caps for Internet services, the FCC should regulate these services on two additional fronts.

First, the FCC should prohibit correctional contractors from selling the data they collect from inmates and their loved ones to private third parties. While it is appropriate to require inmates and their loved ones to agree to a reasonable degree of monitoring by law enforcement to ensure that Internet services are not used for nefarious communications, selling this data to private third parties unnecessarily undermines efforts to reduce recidivism rates by placing substantial burdens on former inmates in credit and labor markets. Regardless of the extent to which selling customer data is already a major component of a correctional contractor’s business model, the FCC should act now to curtail it. While selling customer data may be a valuable perk of providing Internet services within correctional facilities, it is a perk that must be trumped by efforts to successfully integrate former inmates back into society.

Second, the FCC should make clear that correctional contractors will be held financially liable for data breaches. Just as selling data can place substantial burdens on former inmates in credit and labor markets, these same burdens can result where data is shared as a result of a data breach. Earlier in 2015 the FCC entered into a consent agreement with one Internet service provider—AT&T—after customers’ social security numbers were leaked.[54] Under the consent agreement, AT&T was required to “pay a civil penalty of $25,000,000 and develop and implement a compliance plan to . . . protect consumers against similar data breaches in the future.”[55] The FCC should make it clear that correctional contractors would face similar liability in the wake of a data breach.

By making it clear that correctional contractors will be held liable in the wake of a data breach, the FCC can place correctional contractors on notice of the significant impact that the data they collect can have on society’s interest in reducing recidivism rates.[56] As the original collectors of the data, placing liability on correctional contractors is appropriate in light of the difficulties involved in tracing how data is repackaged and shared once it is originally leaked. By establishing clear liability guidelines, the FCC can provide correctional contractors with an incentive to appropriately protect the sensitive data they collect, and ensure that the costs of a data breach are not disproportionately placed on former inmates and their loved ones.

Conclusion

While correctional contractors provide a valuable service that can help reduce recidivism rates, the privacy policies they currently offer undermine that goal. Sharing sensitive data about inmates and their loved ones—whether it be involuntarily through a data breach, or through a voluntary transaction—illustrates one way these privacy policies fall short. The FCC can correct this issue by prohibiting correctional contractors from selling the data they collect to private third parties, and by establishing clear liability guidelines for data breaches.

[1]Thomas McMullan, What Does the Panopticon Mean in the Age of Digital Surveillance?, Guardian (July 23, 2015), http://www.theguardian.com/t‌echnology/2015/jul/23/pano‌pticon-digital-surveillance-jeremy-bentham [https://perma.cc/435Q-6BVF].

[2]Jeremy Bentham, Panopticon: Or, the Inspection-House 4–5 (Dublin, Thomas Byrne 1791).

[3]See, e.g., Emily Green, Captive Consumers: Corporations Reap Big Profits on Inmate Finances, Video Visitation in Multnomah County, Street Roots News (Jan. 6, 2015), http://news.streetroots.org/2015/01/06/captive-consumers-reap-big-profits-inmate-finances-video-visitations [https://perma.cc/G687-N9ET].

[4]Securus Technologies, Inc. to Acquire JPay Inc., PR Newswire (Apr. 14, 2015, 11:30 AM), htt‌p://www.prnewswire.com/news-releases/securus-technologies-inc-to-acquire-jpay-i‌nc-300065531.html [https://perma.cc/J98A-STHM].

[5]See Sasha Abramsky, Toxic Persons, Slate (Oct. 8, 2010, 7:34 AM), http://ww‌w.slat‌e.c‌o‌m/articles/news_and_politics/jurisprudence/2010/10/toxic_persons.html [htt‌ps://p‌erm‌a.c‌c‌/S‌D7J-CVP6].

[6]Jon Brodkin, FCC Will Let Jails Charge Inmates More for Phone Calls, Ars Technica (July 18, 2016, 12:55 PM), http://arstechnica.com/tech-policy/2016/07/fcc-will-let-jails-char‌ge-inmates-more-for-phone-calls/ [https://perma.cc/2ZUX-PQZV].

[7]Press Release, FCC, FCC Takes Next Big Steps in Reducing Inmate Calling Rates (Oct. 22, 2015), https://apps.fcc.gov/edocs_public/attachmatch/DOC-335984A1.pdf [https://perm‌a.cc/C2R4-8R6B].

[8]Ben Branstetter, The Case for Internet Access in Prison, Wash. Post (Feb. 9, 2015), https://www.washingtonpost.com/news/the-intersect/wp/2015/02/09/the-case-for-internet-ac‌cess-in-prisons/ [https://perma.cc/M6KV-YEKE].

[9]Anne Field, Startup’s Education Platform for Curbing Recidivism Launches Pilot in Philly Prison, Forbes, Oct. 31, 2014, http://www.forbes.com/sites/annefield/2‌014/10/31/sta‌rtups-education-platform-for-curbing-recidivism-launches-pilot-in-philly-prison/ [https://p‌er‌ma.cc/76NH-9X5M].

[10]Margaret diZerega & Sandra Villalobos Agudelo, Vera Inst. of Justice, Piloting a Tool for Reentry: A Promising Approach to Engaging Family Members 4 (2011), http://www.vera.org/sites/default/files/resources/downloads/Piloting-a-Tool-for-Reentry-Updated.pdf [https://perma.cc/5NX6-U6SY].

[11]Press Release, FCC, supra note 7.

[12]Stephanie Clifford & Jessica Silver-Greenberg, In Prisons, Sky-High Phone Rates and Money Transfer Fees, N.Y. Times (June 26, 2014), http://www.nytim‌es.c‌om/20‌14/‌06/27/business/in-prisons-sky-high-phone-rates-and-money-transfer-fees.html?_r=0 [http‌s://‌perma.cc/6MCM-PPUA].

[13]Motion of Global Tel*Link for Partial Stay Pending Judicial Review at 9, Global Tel*Link v. FCC (D.C. Cir. 2016) (No. 15-1461), http://cdn.arstechnica.net/wp-con‌tent/up‌loads/2016/03/prison-phone-stay-petition.pdf [https://perma.cc/KX5L-898P].

[14]389 U.S. 347, 360 (1967) (Harlan, J., concurring).

[15]Orin S. Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 Harv. L. Rev. 476, 479–80 (2011).

[16]468 U.S. 517, 519 (1984).

[17]Patrice A. Fulcher, The Double-Edged Sword of Prison Video Visitation: Claiming to Keep Families Together While Furthering the Aims of the Prison Industrial Complex, 9 Fla. A&M U. L. Rev. 83, 85–87 (2013).

[18]Clifford & Silver-Greenberg, supra note 12.

[19]Press Release, FCC, supra note 7.

[20]Matt Stroud & Joshua Brustein, Expensive ‘Prison Skype’ Is Squeezing Out In-Person Visitation, Bloomberg News (Apr. 27, 2015, 11:07 AM), http://www.bloomb‌erg.c‌om/n‌ews/a‌rticles/2015-04-27/expensive-prison-skype-is-squeezing-out-in-person-visitation [http‌s://per‌ma.cc/44FP-X898].

[21]47 U.S.C. § 1302(a) (2012).

[22]Protecting and Promoting the Open Internet, 80 Fed. Reg. 19,738, 19,738 (Apr. 13, 2015) (to be codified at 47 C.F.R. pts. 1, 8, 20).

[23]740 F.3d 623, 628 (D.C. Cir. 2014).

[24]47 U.S.C. § 222 (2012).

[25]Id. § 222(a).

[26]Sam Pfeifle, FCC Fines AT&T $25m for Data Privacy Lapse; Who Will Be Next?, Int’l Ass’n Privacy Prof.: The Privacy Advisor (Apr. 9, 2015), https://iapp.org/news/a/fcc-fines-at-who-will-be-next/ [https://perma.cc/7QDY-5X5X].

[27]See, e.g., GTL Inmate Data Analysis, GTL, http://www.gtl.net/correctional-facility-services/investigative-solutions/data-analysis/ [https://perma.cc/M7FY-VJVW].

[28]Privacy Policy, Securus, https://securustech.net/privacy [https://perma.cc/CP87-6JD7].

[29]Privacy Policy, JPay, http://www.jpay.com/LegalAgreementsOut.aspx [https://perm‌a.cc/M8DM-FKCA].

[30]Email Terms of Service, JPay, http://www.jpay.com/LegalAgreementsOut.aspx [ht‌tp‌s://perma.cc/M8DM-FKCA].

[31]Video Visitation Terms of Service, JPay, http://www.jpay.com/L‌egalA‌greemen‌tsO‌ut.aspx [https://perma.cc/M8DM-FKCA].

[32]Global Tel*Link Corp., Privacy Statement 3, 5 (2015), http://www.gtl.net/wp-conte‌nt/up‌loads/2015/04/GTL%20NET%20-%20Privacy%20Statement%20-%20Final%20-%20%‌20‌0‌3-30-15.pdf [https://perma.cc/96LH-C8BT].

[33]Id. at 2.

[34]John W. Bagby, Balancing the Public Policy Drivers in the Tension Between Privacy and Security in 3 Cyber Crime: Concepts, Methodologies, Tools and Applications 1441, 1451 (Info. Res. Mgmt. Ass’n ed., 2012).

[35]Global Tel*Link Corp., supra note 32, at 4–5.

[36]General Terms and Conditions Including Privacy Policy, Product Terms and Conditions, and Mobile Terms and Conditions, Securus, https://securustech.net/terms-and-condi‌tion‌s#privacy [https://perma.cc/B6LX-VGXS].

[37]Stroud & Brunstein, supra note 20.

[38]Id.

[39]Ahiza Garcia, $14 a Minute? Pricey Prison Phone Calls Capped by FCC, CNN Money (Oct. 23, 2015, 9:54 AM), http://money.cnn.com/2015/10/23/news/fcc-prison-phone-call-ra‌t‌es/ [https://perma.cc/993Y-9RTF].

[40]GTL Inmate Data Analysis, supra note 27.

[41]See Will Hobson, Police Gang Lists Can Have Life-Long Impacts and are Questioned by Legal Experts, Tampa Bay Times (Sept. 15, 2012, 7:08 PM), http://www.ta‌mpa‌bay.com/news/publicsafety/crime/police-gang-lists-can-have-life-long-im‌pacts-and-are-ques‌tioned-by-legal/1251855 [https://perma.cc/BAL7-J72G].

[42]Frank Pasquale, The Black Box Society 33 (2015) (internal quotation marks omitted).

[43]Id.

[44]Id.

[45]See Andrew Guthrie Ferguson, Big Data and Predictive Reasonable Suspicion, 163 Univ. Pa. L. Rev. 327, 399–400 (2015).

[46]See Pasquale, supra note 42, at 22, 33–34 (describing how false claims regarding criminal history can negatively affect job applicants).

[47]See Jenny Roberts, Expunging America’s Rap Sheet in the Information Age, 2015 Wis. L. Rev. 321, 341–42.

[48]See Laura Sullivan, Life After ‘Life’: Aging Inmates Struggling for Redemption, NPR (June 4, 2014), http://www.npr.org/2014/06/04/317055077/life-after-life-aging-inmates-stru‌ggle-for-redemption [https://perma.cc/X6SQ-4ZRU] (“Since he’s been out, Huckleberry has found a couple of jobs, including one at a car dealership. But they fired him when they found out he’s a felon.”).

[49]Reid Wilson, Georgia the Latest State to ‘Ban the Box’ in Hiring Practices, Wash. Post (Feb. 24, 2015), https://www.washingtonpost.com/blogs/govbeat/wp/2015/02/24/georgia-th‌e‌-latest-state-to-ban-the-box-in-hiring-practices/ [https://perma.cc/QGH2-AF9W].

[50]See Stephanie Clifford & Jessica Silver-Greenberg, Retailers Track Employee Thefts in Vast Databases, N.Y. Times (Apr. 2, 2013), http://www.nytimes.com/20‌13/04‌/03/b‌usine‌ss/retailers-use-databases-to-track-worker-thefts.html [https://perma.cc/VEK9-UKCQ].

[51]Case C-131/12, Google Spain SL v. Agencia Española de Protección de Datos (May 13, 2014), http://curia.europa.eu/juris/docum‌ent/document_print.jsf?do‌clang=EN‌&text&pageIn‌dex=0&part=1&mode=DOC&docid=152065&occ=first&dir&cid=437838 [https://perma‌.cc/‌4SL7-H3LJ].

[52]European Comm’n, Factsheet on the “Right to be Forgotten” Ruling (C-131/12), http://ec.europa.eu/justice/data-protection/files/factsheets/factsheet_data_protection_en.pdf [https://perma.cc/9KTZ-RXNZ].

[53]Jeffrey Rosen, The Right to be Forgotten, 64 Stan. L. Rev. Online 88, 88 (2012).

[54]Pfeifle, supra note 26.

[55]AT&T Servs., Inc., 30 FCC Rcd. 2808 (2015).

[56]See, e.g., Danielle Keats Citron, Reservoirs of Danger: The Evolution of Public and Private Law at the Dawn of the Information Age, 80 S. Cal. L. Rev. 241, 264–67 (2007).

Discrimination is a Comparative Injustice: A Reply to Hellman

In Two Concepts of Discrimination, Professor Hellman lucidly and systematically explains the difference between comparative and noncomparative conceptions of discrimination.[1] Although other legal scholars and philosophers have addressed the distinction between comparative and noncomparative justice,[2] she profitably applies the distinction to current controversies about the meaning and scope of antidiscrimination norms in statutory and equal protection law. Her approach is largely conceptual and interpretive, identifying the categories and reasoning that courts and legal scholars have employed. However, she also critiques aspects of that reasoning.

Hellman believes that her analysis illuminates a number of issues in contemporary constitutional discrimination jurisprudence. In her view, it explains why the supposed clash between equal protection doctrine and Title VII’s disparate impact approach is illusory, why equal protection doctrine is ambivalent about whether irrational government action is constitutionally problematic, and why equal protection and due process reasoning should only sometimes be combined.

There is much to admire in Hellman’s article. She carefully elucidates important conceptual and doctrinal distinctions, demonstrates a subtle and insightful appreciation of the complexities of equal protection doctrine, and is scrupulously fair in enunciating arguments that she ultimately rejects.

This Essay offers some friendly criticisms of her approach. I share her belief that the distinction between comparative and noncomparative justice is critical for understanding constitutional doctrine.[3] I disagree, however, about how, and even whether, that distinction should apply to antidiscrimination norms. And I do not believe that her analysis fully succeeds in explaining the three contemporary issues that she highlights.

A. The Distinction Between Comparative and Noncomparative Injustice

A comparative conception of injustice asserts that whether X has been unjustly treated depends on how others have been (or would have been) treated. A noncomparative conception asserts that whether X has been unjustly treated does not depend on the treatment of others. Hellman applies this distinction to the moral and legal problem of wrongful discrimination, arguing that courts and scholars have employed both conceptions here as well.

Why does this distinction matter? For several reasons, according to Hellman (with which I largely agree). First, for purposes of understanding the scope and content of the right, a comparative right is defined by reference to how others are treated. Second, as a substantive matter, deeper egalitarian norms explain why this formal or structural feature matters morally or legally. Here, Hellman “proposes” that the relevant substantive value is the duty to treat people “as equals.”[4] This, she suggests, is the substantive value upon which our equal protection doctrine actually relies.[5] However, as we will see, appealing to this particular substantive understanding of the norm underlying equal protection is more controversial than Hellman may realize.

Third, Hellman points out that comparative and noncomparative rights entail different remedies.[6] A comparative injustice can be remedied either by leveling up or by leveling down (or, I would add, by any intermediate remedy that corrects the inequality[7]), while remedying a noncomparative injustice requires leveling up, in the sense of giving the aggrieved person what she is entitled to. Thus, if a judge is sentencing two individuals A and B whose participation in a crime is identical in all relevant respects, but the judge has discretion to give any sentence between five and ten years, the judge commits a comparative injustice if he sentences A to five years and B to ten years. The inequality can be remedied either by increasing A’s sentence to ten years or by decreasing B’s to five (or by imposing any equal, intermediate sentence). But if, in a different, noncomparative case, a judge sentences C to seven years when, as a matter of statutory or constitutional law, C is entitled to a five-year sentence, the only proper remedy is to impose the five-year sentence.

I agree that different remedies flow from comparative and noncomparative rights,[8] but I think that Hellman’s account overstates the difference. If a noncomparative right actually creates a moral or legal entitlement to a particular treatment (as in the example of C’s sentence), then of course it follows that only that treatment satisfies the right. But not all noncomparative rights create specific entitlements. In the sentencing example, suppose the judge has discretion to sentence C to between three and five years, and further suppose that a sentence within that range is consistent with C’s noncomparative right to be punished according to his just deserts. Then, any sentence within that range respects C’s noncomparative rights (both C’s right that the sentencing judge respect the statutory limits and C’s right to be treated according to C’s just deserts). And conversely, a comparative right can create a specific entitlement. For example, if a person violates the Age Discrimination in Employment Act or the Equal Pay Act, the remedy requires leveling up.[9]

Although it should not be controversial that some constitutional and legal rights are concerned with comparative injustice and others with noncomparative injustice, what is controversial is Hellman’s central claim in this article—that the wrong of discrimination can be explicated either as comparative or noncomparative. By definition, wrongful discrimination refers to unjustified distinctions between persons. How can this wrong be understood as noncomparative? The very basis of the complaint is the claimed injustice of differential treatment. As Hellman notes, “[T]he independent [noncomparative] conception of discrimination makes the term ‘discrimination’ lose its moral resonance.”[10]

But Hellman is on solid ground in reporting that some scholars and judges do appear to characterize the wrong of discrimination as noncomparative. This is especially true, she notes, of many advocates of an “anticlassification” approach to racial discrimination, an approach that treats differential treatment in favor of minorities (such as affirmative action) with as much suspicion or disfavor as differential treatment that burdens minorities.[11] Those who take this stance sometimes claim that it is wrongful for a decision maker (such as a government, university, or employer) to consider race in any way in making a decision about allocating benefits or burdens. And, at first blush, a right not to have race considered in a decision affecting you looks like a noncomparative right: We need not examine how others are treated in order to determine whether your right was violated.

Nevertheless, I believe that it is implausible to characterize a supposed right to be free of race-based or gender-based decision making as a noncomparative right. At the same time, the reasons why this characterization might seem plausible deserve careful attention, for they reveal a greater complexity in the structure and justification of comparative rights than first appears.

Let us examine more closely the claim that a right to have race ignored is a noncomparative right. How would this claim arise? A white applicant to a university complains that he was rejected while a minority applicant with the same qualifications was admitted. This, of course, is a complaint of unfair comparative disadvantage. Take away that disadvantage and the complaint evaporates. The complaint is not that race was considered simpliciter. It is that race was considered to the complainant’s detriment.[12]

I suspect that Hellman finds a comparative account of the “color-blind” principle to be unpersuasive because she finds the principle itself unpersuasive. However, the question she is addressing is not normative (whether the principle itself is justifiable), but interpretive (how advocates of the principle explain and justify it). Many advocates of the principle do interpret it as a comparative principle, forbidding (or subjecting to serious scrutiny) any classification that disadvantages persons on the basis of race, and it is indeed a coherent exemplar of a comparative right. Other advocates worry that permitting racial preferences will aggravate racial and social divisions,[13] will stigmatize the recipients as inferior,[14] or will require the use of offensive racial criteria reminiscent of Nazi criteria for identifying Jews.[15] These, too, are justifications based on the comparative conception of discrimination, for they focus on the perceived undesirable, inegalitarian effects of permitting race-conscious programs. Although I ultimately share Hellman’s view that the “color-blind” principle is not the best understanding of our constitutional doctrine or of the egalitarian norms that should govern us, these are entirely different questions.

We have seen that the typical complaint against programs of racial preference depends on the complainant suffering a detriment relative to the preferred group. But can we imagine a case in which a racial classification is employed yet members of a particular race are not disadvantaged? Suppose that in 2017, the IRS requires blacks to file taxes on April 1, and whites on April 15. The following year, whites must file on April 1, and blacks on April 15, and so on for future years. This policy does seem troublesome, and perhaps it does reflect a noncomparative right not to have race employed as a criterion in government decision making.[16] However, the difficulty of constructing an example of this sort suggests two things. First, I seriously doubt that the principal concern of those who object to affirmative action programs is the mere use of race. Rather, they are disturbed by the favorable treatment of minority applicants relative to white applicants in securing a competitive position (such as a job or admission to a university). Second, even in this unusual IRS example, the reason that the use of an explicit racial classification is troublesome is, at least in part, a concern about unjustified inequality. The social significance of racial categories in American history cannot be overstated. In light of that tragic and divisive history, employing racial categories for administrative convenience when so many other, less divisive categories could just as easily be used is problematic: It demonstrates indifference to that history and might perpetuate and aggravate racial divisions. In short, I believe that the deeper explanation for our unease at employing racial categories, even those that do not create winners and losers, is an egalitarian, comparative principle.

To be sure, some advocates of the color-blind or anticlassification view articulate another rationale for their view: the principle that citizens should be treated as individuals, rather than as members of a racial group. Hellman reminds us that this was an important rationale for Justice Lewis Powell’s famous and dispositive opinion in the affirmative action case Regents of the University of California v. Bakke.[17] Hellman characterizes this rationale as noncomparative. I demur. The rationale is comparative, because it rests on the impropriety of treating a person as equal to others in the same (racial) category. At the same time, the underlying claim of comparative right here is not to equal treatment or treatment as an equal. Rather, the claim is to be treated differently from others in the category, in accordance with and in proportion to one’s individual (nonracial) characteristics.[18]

Like Hellman, I believe that the supposed right to individual treatment is not the best explanation of opposition to preferential treatment programs. Opponents surely do not believe that the state is generally disabled from using rational but imperfect proxies for relevant qualities, such as minimum age requirements for driving or voting, or grade point averages and standardized test scores as criteria for university admission.[19] Rather, they judge the use of racial categories to be especially problematic. Nevertheless, if someone truly believes that using overinclusive categories or failing to consider a wide range of individual characteristics is an affront to justice, it is important to see that this belief presupposes a comparative conception of justice.[20]

Following her discussion of the supposedly noncomparative right to be free from race-based classifications, Hellman turns to a different right that, she claims, is grounded in a noncomparative conception of the wrong of discrimination—the right to be free from gender stereotyping.[21] She rightly points out that in many gender discrimination cases, the Supreme Court focuses not on whether a law relies on a generalization that is too loose or inaccurate, but instead on the content of the generalization, and whether the gender stereotype confines individuals to particular gender roles—assuming, for example, that women are more caring than men and thus more suitable nurses, or that men are better suited for the rough and adversarial educational environment in a military academy. Hellman then asserts: “The antistereotyping principle found in sex discrimination cases rests on the view that each person (male or female) has an independent, noncomparative right to define his or her gender identity for him or herself.”[22]

The assertion does not follow from Hellman’s analysis. The Court has not recognized a general right of an individual to define his or her own identity in all respects. Yes, it is plausible to view the Court’s cases as recognizing the more specific right to define one’s gender identity, but notice that such a right is inherently comparative. It is a right not to be limited to “fixed notions concerning the roles and abilities of males and females”[23] such as “the pervasive sex-role stereotype that caring for family members is women’s work.”[24] One cannot make sense of the wrong of confining individuals to fixed gender roles without appreciating that such roles draw distinctions, presumptively treating men differently from women. Once again, a supposedly noncomparative right turns out to be comparative in structure and content.

To be sure, the right to define one’s own gender identity is a right that all citizens enjoy. But a universal right is not necessarily a noncomparative right. If, as in this instance, the rationale for the right is to avoid comparative injustice, then the right should be characterized as comparative.

B. The Doctrinal Implications of Hellman’s Analysis

In the final sections of her article, Hellman reviews three doctrinal issues that, she argues, reveal the payoff of the earlier analysis. I will suggest that her analysis helpfully illuminates the third issue she examines, but sheds less light upon the first and second.

1. Is Disparate Impact at Odds with Equal Protection?

First, Hellman addresses the question whether disparate impact and equal protection are at odds. Some scholars and judges, she observes, have proclaimed that these doctrines are in serious tension: Title VII’s disparate impact doctrine encourages employers to focus on whether an employment practice produces disparities disadvantaging minorities or women, but equal protection doctrine may prohibit employers from changing their practices for the purpose of reducing disparities. Equal protection might have this implication if it is understood as prohibiting, or subjecting to strict scrutiny, any race-based classification. Much more troubling, Hellman notes, is a further implication of this approach: Even facially neutral programs, such as efforts by schools to reduce the racial achievement gap by offering universal pre-kindergarten or efforts to reduce racial disparities in housing or healthcare, might violate equal protection, because the intent to reduce racial disparities is arguably an illegitimate purpose on this color-blind understanding of the demands of equal protection.

Hellman argues that this supposed tension, asserted by advocates of the anticlassification approach, between equal protection and disparate impact doctrine (and other policies intended to reduce racial disparities) rests on a conceptual mistake. These advocates are improperly combining a legitimate comparative right (the right not to be subject to a policy intended to harm or disadvantage a racial group) with a controversial noncomparative right (the right not to have race taken into account in how one is treated). As she explains:

[T]he claim that awareness of racial impact violates equal protection^[[25]] derives from a flawed conflation of the two conceptions of the wrongful discrimination. It takes the prohibition on racial categories from the noncomparative view and the focus on intention from the comparative view and grafts them together to form a hybrid argument that, though full of sound and fury, signifies nothing.

. . . .

. . . [T]hese two facets of our doctrine (the focus on intention and the prohibition on racial classification) derive from different, competing accounts of what makes discrimination wrong. They cannot be fruitfully combined.[26]

The focus on intention, she claims, is a plausible comparative right when it means an intent to harm or disadvantage, but not when it means an intent to classify on the basis of race, because “[t]here is simply nothing obviously wrong with intending to classify on the basis of race.”[27]

I agree with Hellman’s conclusion, that equal protection should not be understood to prohibit race-conscious efforts to reduce racial hierarchies or racial disparities, especially when the programs adopted to further these ends are themselves racially neutral. But I do not believe that the conclusion follows from her premises. In the first place, as I suggested above, the right not to have race taken into account is quite plausibly understood as a comparative rather than a noncomparative right. In claiming that there is nothing obviously wrong with intending to classify on the basis of race, Hellman is asserting her own (quite defensible) normative view, but she thereby departs from the interpretive, rather than normative, stance that she otherwise takes in this article. (Note, too, that she could similarly state that there is nothing obviously wrong with classifying on the basis of race; yet she is willing to credit the anticlassification principle as a coherent, though unpersuasive, understanding of the wrong of discrimination.)

Secondly, even if the anticlassification principle is understood as a noncomparative right, Hellman has offered no argument why comparative and noncomparative right claims should not be combined, either in this context or more generally.[28] In many situations, combining these different types of rights is perfectly acceptable. Recall the earlier example in which comparative equality principles provide that defendant A should receive the same sentence as defendant B because their participation in a criminal endeavor is identical. Now suppose the judge has already sentenced A to three years, but the judge then determines that she should have sentenced A to five years. And suppose that a noncomparative principle provides that, once A has been sentenced, A’s sentence may not be increased. Then, the judge could legitimately combine the comparative and noncomparative principles and sentence B to three years.

2. Why We Are Confused About Rationality Review

Hellman next addresses why courts and commentators are so confused about whether rationality review is toothless or instead has some bite, and, if the latter, about when it has bite. She concludes that the Equal Protection Clause protects individuals from irrational government action under the noncomparative conception of discrimination but not under the comparative conception. Under the latter, she believes, genuine arbitrariness is not a constitutional problem.

Specifically, she reasons that if a law irrationally differentiates—for example, by forbidding opticians from fitting lenses without a prescription but permitting makers of ready-to-wear glasses to fit lenses[29]—then those who are burdened are burdened for no good reason. “If this is a constitutional problem, it is a problem because people have an independent, noncomparative right that state action that burdens their liberty does so for a reason.”[30] However, such irrationality is not, she claims, a comparative wrong.

These claims are surprising and, in the end, unconvincing. To be sure, some laws are irrational and constitutionally problematic for noncomparative reasons. The clearest example would be a law that burdens everyone for no reason. Realistic instances are difficult to conjure up, but suppose a dictator, on a whim, requires everyone (including himself) to stand still for an hour every day. More realistically, suppose that a government official refuses to do his duty unless he is bribed. He does have a reason, but an illegitimate one, for demanding a bribe. And we might reasonably conclude that he wrongs each citizen from whom he demands a bribe, regardless of how he treats other citizens.

But why does Hellman conclude that a similarly arbitrary or illegitimate reason for comparatively unequal treatment is not a distinctive constitutional problem? After all, if the dictator requires only some people to stand still every day, or demands bribes only of some citizens, he has evidently introduced a new problem: the problem of unjust inequality in treatment.

Here is her explanation. In the case of stupid, arbitrary laws that burden some but not all people for no reason (or no good or legitimate reason), the right that is infringed is the noncomparative right not to have your liberty restricted without good reason, not the comparative right not to be treated differently without good reason. Hellman offers the following example. Due to stupidity and with no factual basis, a university gives preference in admissions to students who wear glasses. This policy, she says, restricts the liberty of students without glasses for no good reason and thus rests on a noncomparative right. But the policy does not fail to treat those affected as equals (and thus does not violate a comparative right) because it is simply bad luck that some people with good vision are disadvantaged by this crazy policy, and comparative equality rights are not concerned with mere bad luck.

This explanation is unpersuasive. First, it is not clear that the noncomparative “liberty” interests of university applicants are infringed by irrational policies. Hellman here assumes without argument a broad understanding both of “liberty” and of what counts as an infringement.[31] Second, she also assumes without sufficient argument a narrower understanding of what counts as an infringement of a comparative equality right. Why must any coherent conception of a comparative equality right treat disadvantage due to stupid or arbitrary criteria as “bad luck” for which the decision maker is not responsible? It is hardly a matter of “luck” that students with good vision are disadvantaged by the foolish policy: This effect of the policy is entirely foreseeable, and the decision maker can readily avoid the effect simply by repealing the policy. The “mere bad luck” view is even more implausible in scenarios where the disadvantage is more significant than loss of a chance to be admitted to a university: suppose a judge sentences B to a longer sentence than similarly situated A simply because she dislikes B’s hairdo.

I suspect that the real explanation for Hellman’s willingness to recognize a noncomparative right not to be burdened for no reason and unwillingness to recognize an analogous comparative right not to be disadvantaged for no reason is that, as a normative matter, she is disposed to endorse the first right but not the second. She apparently views the Dworkinian right to be treated as an equal as a right that addresses only relatively serious forms of injustice, not trivial inequalities. In her recent book, she espouses the view that this egalitarian norm is best understood as prohibiting classifications that express denigration of a subgroup of citizens,[32] and foolish and ineffective laws are not demeaning. Hellman’s is a very plausible view of when discrimination is especially wrong. But, for purposes of the interpretive task that she sets for herself in the current article, it is unpersuasive to claim that other forms of discrimination, including irrational differential treatment for insufficient reason, are not genuine violations of comparative equality rights.

The final example Hellman offers in her irrational treatment section is the so-called “class of one” problem. Courts have struggled with the question whether, if the government intentionally treats a single citizen B differently from, and less favorably than, the way the government treated another, similarly situated citizen A in the past, this violates equal protection—for example, the government requires an easement from B but not from A as a condition of granting a permit. Hellman characterizes this as a question of the noncomparative right of B not to be treated irrationally. But the issue in these cases is comparative: whether the difference in treatment is irrational. There is typically no question in these cases that the government could rationally (and constitutionally) have decided in the first instance to impose the same burden on A that it later imposed on B. It is thus difficult to see why she believes this category of cases exemplifies a noncomparative rather than comparative right.

To be sure, rational basis tests are controversial. It is a difficult and important question whether, when legislation does not infringe fundamental rights and does not employ suspect or quasi-suspect traits, constitutional constraints should be completely, extremely, or only modestly deferential.[33] But the question is not resolved by whether we characterize the constraint as comparative or noncomparative. A comparative right can be robust or deferential,[34] and the same is true of a noncomparative right.

3. When Should Equal Protection and Due Process Analysis Be Combined?

The final payoff that Hellman identifies from her analysis is how to make sense of cases, including the recent cases of Lawrence v. Texas[35] and Obergefell v. Hodges[36], that combine equal protection and due process analyses. Here, I find Hellman’s approach illuminating. As she explains, a comparative view of the wrong of discrimination treats equal protection as requiring a comparative analysis, while due process requires a noncomparative analysis. In Skinner v. Oklahoma,[37] for example, the comparative view treats procreative capacity as a fundamental interest that requires strict scrutiny if it is differentially burdened, but not simply because it is burdened. By contrast, on a noncomparative view of discrimination, both equal protection and due process require noncomparative analysis. On this view, the problem in Skinner is the noncomparative burden, apart from how others are treated. Similarly, the undifferentiated emphasis on “dignity” in some recent Supreme Court cases is problematic on the comparative view of discrimination, because the term might encompass either a comparative right (to be treated with respect in a nondemeaning way) or a noncomparative right (to have control of one’s own destiny including one’s sexual autonomy).[38] But this lack of differentiation is not problematic on the noncomparative view, because both the Equal Protection and Due Process Clauses focus on whether the claimant has an independent entitlement to be treated in a particular way. On the noncomparative view, Hellman explains, the fact that some are burdened and others are not “may make the underlying rights deprivation salient but it isn’t what makes it wrong.”[39] In the recent Obergefell opinion, for example, although the court refers to both equal protection and due process analysis, its references to equal protection are largely in service of identifying the important liberty interest at stake when gay citizens are denied the right to marry.

Although I largely agree with this analysis, conceiving of a noncomparative right as creating an “independent entitlement” can be misleading for reasons already noted. A noncomparative right does not invariably create an unconditional entitlement. Rather, the entitlement is sometimes conditional, especially when the decision maker has discretion whether to provide the benefit (or alleviate the burden) in question. For example, statutes burdening the fundamental interest in a meaningful appeal of a state criminal conviction can be understood as problematic for noncomparative reasons without assuming that there is a constitutional right to such an appeal. The wrong is still noncomparative if the injustice of conditioning an appeal on the ability to pay a fee does not depend on how others are treated. On this view, such a fee requirement is akin to a requirement that forbids all defendants, rich or poor, from furnishing a trial transcript to the appellate court.[40] Thus, the noncomparative view espoused by Justice Harlan in equal protection-fundamental interest cases could apply even in cases where the interest at issue is constitutionally optional.[41] Similarly, state governments are free to decide to get out of the business of recognizing marriages entirely, leaving “marriage” as a religious rather than secular, civil law category. In that sense, the right to marry is constitutionally optional. But once the state recognizes marriage and permits significant social, legal, and economic benefits to flow to married persons, it has a noncomparative duty not to deny that status to persons unless it has a very weighty reason to do so.

Finally, the Obergefell opinion, although focused on the denial of the freedom to marry, also emphasizes egalitarian concerns, including the concern that excluding gays from marriage demeans and stigmatizes them. And it is telling that the court’s actual holding is framed in comparative terms: “[T]he State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.”[42] Insofar as states are free to impose a significant range of conditions and restrictions upon marriage, and insofar as states differ considerably from one another in the nature and scope of these restrictions, we must conclude that the noncomparative right to marry, although rhetorically important in Obergefell, is not a complete explanation of the scope of the Court’s ruling.

Conclusion

Despite my disagreements with Professor Hellman about how one should draw the distinction between comparative and noncomparative injustice and about the implications of that distinction, I share her view that the distinction is crucial in identifying the scope and content of, and the justifications for, specific legal rights not to suffer discrimination. Any satisfactory account of the wrong of discrimination must attend to the important questions she raises in this perceptive and original article.

[1]Deborah Hellman, Two Concepts of Discrimination, 102 Va. L. Rev. 895, 897 (2016).

[2]See, e.g., Joel Feinberg, Noncomparative Justice, 83 Phil. Rev. 297, 298 (1974); Kent Greenawalt, “Prescriptive Equality”: Two Steps Forward, 110 Harv. L. Rev. 1265, 1266 (1997); Raleigh Hannah Levine & Russell Pannier, Comparative and Noncomparative Justice: Some Guidelines for Constitutional Adjudication, 14 Wm. & Mary Bill Rts. J. 141, 188 n.152 (2005); Derek Parfit, Equality or Priority?, in The Ideal of Equality 81, 81–125 (Matthew Clayton & Andrew Williams eds., 2000); Peter Westen, The Empty Idea of Equality, 95 Harv. L. Rev. 537, 551–52 (1982).

[3]See Kenneth W. Simons, Equality as a Comparative Right, 65 B.U. L. Rev. 387, 450, 461 (1985) [hereinafter Simons, Comparative Right]; Kenneth W. Simons, The Logic of Egalitarian Norms, 80 B.U. L. Rev. 693, 709–10, 763 (2000) [hereinafter Simons, Logic].

[4]Hellman, supra note 1, at 901–03. This formulation, the right to be treated “as an equal,” derives from Professor Ronald Dworkin and his notion of the right to be treated with equal concern and respect. See Ronald Dworkin, Taking Rights Seriously 227 (1977) (“If I have two children, and one is dying from a disease that is making the other uncomfortable, I do not show equal concern if I flip a coin to decide which should have the remaining dose of a drug. This example shows that the right to treatment as an equal is fundamental, and the right to equal treatment, derivative. In some circumstances the right to treatment as an equal will entail a right to equal treatment, but not, by any means, in all circumstances.”).

[5]Hellman, supra note 1, at 902 n.18.

[6]Id. at 917.

[7]See Simons, Logic, supra note 3, at 711.

[8]One important complication here is that the appropriately flexible remedy depends on the nature of the comparative right. For example, because it is comparatively unjust to exclude black citizens from a public swimming pool, it might seem that the injustice can be remedied either by admitting both blacks and whites or instead by closing the pool. See Palmer v. Thompson, 403 U.S. 217, 227 (1971). However, it is also plausible to characterize the action of denying a benefit to both blacks and whites for an impermissible racist reason as a comparative injustice, as Hellman recognizes. See Hellman, supra note 1, at 917 & n.61; Simons, Comparative Right, supra note 3, at 431–33.

[9]The Age Discrimination in Employment Act, 29 U.S.C. § 623 (2012), provides: “It shall be unlawful for an employer” to discriminate against an employee because of the employee’s age or “to reduce the wage rate of any employee in order to comply with this chapter.” The Equal Pay Act, which addresses certain forms of sex discrimination in employment, similarly forbids leveling down as a remedy. Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1) (2012) (“[A]n employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the [nondiscrimination] provisions of this subsection, reduce the wage rate of any employee.”).

[10]Hellman, supra note 1, at 909.

[11]Id. at 914–17.

[12]Hellman states:

The anticlassification approach isn’t focused on the comparison between two cases—on the fact that X, a white applicant, is rejected while Y, a comparable black applicant, is accepted. Rather the focus of the anticlassification approach is on the single case and the fact that race was a factor that affected its outcome.

Id. at 917. But, in order for race to “affect the outcome,” it must be the case that some individuals were advantaged or disadvantaged by race relative to others. Moreover, it is difficult to believe that most critics of affirmative action and other preferential treatment programs are unconcerned with the fact that nonpreferred applicants lose a benefit that preferred applicants obtain.

[13]Justice Powell raises this concern in his opinion in Regents of the University of California v. Bakke, 438 U.S. 265, 298–99 (1978), discussed below: “Disparate constitutional tolerance of [benign as opposed to invidious racial] classifications well may serve to exacerbate racial and ethnic antagonisms rather than alleviate them.” Similarly, in the Supreme Court’s most recent affirmative action decision, the dissent characterizes the use of racial criteria as “noxious” and “pernicious.” Fisher v. Univ. of Tex. at Austin, No. 14-981, slip op. at 32, 51 (U.S. June 23, 2016) (Alito, J., dissenting).

[14]See Grutter v. Bollinger, 539 U.S. 306, 373 (2003) (Thomas, J., dissenting).

[15]See Fullilove v. Klutznick, 448 U.S. 448, 534 n.5 (1980) (Stevens, J., dissenting) (“[T]he very attempt to define with precision a beneficiary’s qualifying racial characteristics is repugnant to our constitutional ideals. . . . If the National Government is to make a serious effort to define racial classes by criteria that can be administered objectively, it must study precedents such as the First Regulation to the Reichs Citizenship Law of November 14, 1935 . . . .”). Justice Stevens then describes the Nuremberg laws, which defined “Jew” according to such criteria as parentage, marriage, and belonging to a Jewish religious community. Id. at 534–35 n.5.

[16]This example bears some similarity to Professor Paul Brest’s famous example of a school principal instructing black students to sit on the left side of the auditorium and white students on the right side for purportedly aesthetic reasons. In Hellman’s view, such an order demeans black students. Deborah Hellman, When is Discrimination Wrong? 25–27 (2008).

[17]438 U.S. at 299.

[18]For discussion of the comparative right to proportional treatment, see Simons, Comparative Right, supra note 3, at 437–46.

[19]See Hellman, supra note 16, at 116, 136–37.

[20]The short-lived “irrebuttable presumption” due process doctrine reflected this concern about overbroad classifications that fail to treat a person as an individual. See Kenneth W. Simons, Overinclusion and Underinclusion: A New Model, 36 UCLA L. Rev. 447, 514–18 (1989).

The idea that one should be treated according to all of one’s relevant individual characteristics is, of course, highly impractical. How could a decision maker feasibly measure all those characteristics? This idea also fails to solve the problem of imperfect proxies. Suppose a university admissions office permits applicants to provide any information that they believe is relevant to admission, and the office carefully reviews all of that information. The office would still need to determine criteria of relevance and significance in comparing this applicant to others. But whatever criteria are used can then be criticized as imperfectly furthering or constituting the university’s goals or mission. For further discussion, see Hellman, supra note 16, ch. 5; Simons, Comparative Right, supra note 3, at 439–40.

[21]Hellman, supra note 1, at 918–21.

[22]Id. at 920.

[23]Id. at 919 (quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725 (1982)).

[24]Id. (quoting Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 731 (2003)).

[25]Here, Hellman frames her conclusion in a misleading and exaggerated way. She objects to “the claim that awareness of racial impact violates equal protection,” id. at 924, and to the argument “that equal protection prohibits the awareness of racial impact that disparate impact requires.” Id. at 900. But no one claims that awareness alone is unconstitutional. Rather, the claim is that actors violate equal protection if they possess that awareness and then engage in intentional efforts to reduce or ameliorate racial disparities. This claim, although still ultimately unpersuasive, is much more plausible.

[26]Id. at 924–28.

[27]Id. at 929.

[28]Indeed, later in the article, Hellman states: “[T]he fundamental interests-equal protection line of cases offers an example of how comparative and noncomparative claims can be fruitfully combined—in a manner that is clear about the distinct values that are in play.” Id. at 944.

[29]Williamson v. Lee Optical, 348 U.S. 483, 488–89 (1955).

[30]Hellman, supra note 1, at 933.

[31]Earlier, Hellman asserts that a “promising candidate” for the source of a noncomparative right not to suffer discrimination is the “right to (some degree of) freedom or autonomy.” Id. at 913–14. I agree that such a right is very often a plausible source, but property rights are another source, as in the “class of one” cases discussed infra.

[32]Hellman, supra note 16, ch. 2; see Hellman, supra note 1, at 905–06.

[33]For a recent argument that the rational basis test should be strengthened to require proof of an actual rather than conceivable permissible purpose and of a meaningful relationship between means and ends, see Erwin Chemerinsky, The Rational Basis Test Is Constitutional (and Desirable), Geo. J.L. & Pub. Pol’y (forthcoming 2016) (manuscript at 10–11), http://ssrn.com/abstrac‌t=2782109 [https://perma.cc/XB27-M7FE].

[34]See Simons, Logic, supra note 3, at 759–61.

[35]539 U.S. 558, 564 (2003).

[36]135 S. Ct. 2584, 2602–03 (2015).

[37]316 U.S. 535, 536 (1942).

[38] See, e.g., United States v. Windsor, 133 S. Ct. 2675, 2692 (finding an injury to a person’s dignity to be a violation of the Fifth Amendment).

[39]Hellman, supra note 1, at 947.

[40]See Simons, Comparative Right, supra note 3, at 470–71.

[41]Hellman, supra note 1, at 948.

[42]135 S. Ct. at 2605 (emphasis added).

Pragmatism and Principle: Intelligence Agencies and International Law

“The hell with international law,” Secretary of State Dean Acheson reportedly said during the Cuban Missile Crisis. “It’s just a series of precedents and decisions that have been made in the past.”[1] Although arising in a different context, Secretary Acheson’s observation also aptly summarizes the traditional attitude of states toward international law and intelligence gathering. Intelligence activities are a prime candidate for legal pragmatism—and especially its skepticism toward doctrine.[2] More than this, as Professor Ashley Deeks asserts in her recent article in this publication,[3] commentators have often contested international law’s precise remit in relation to at least some intelligence activities. Reviewing much of this same literature, I have argued that “the international community seems content with an artful ambiguity on the question.”[4] A more recent assessment points to international law’s “policy of silence” as the starting point in understanding the discipline’s relationship to intelligence gathering.[5]

This uncertainty should not, however, be overstated. It has arisen most often, and most credibly, in relation to true intelligence activity in the narrow sense of information collection. “Intelligence” is the “product resulting from the collection, processing, integration, evaluation, analysis, and interpretation of available information concerning foreign nations, hostile or potentially hostile forces or elements, or areas of actual or potential operations.”[6] International law is usually silent in relation to even the most notorious aspect of intelligence—peacetime spying or espionage, through the covert collection of information outside of an armed conflict. And indeed, in the absence of definitive, subject-matter specific law in the area, analysts have arrived at dramatically different conclusions about international law’s relationship with spying.

For instance, in his review, Professor A. John Radsan partitions the academic commentaries on the topic into three categories: those that regard espionage as illegal; those that see it as “not illegal”; and those that describe espionage as neither legal nor illegal.[7] A fourth approach abandons the debate of whether “intelligence gathering” or “espionage” is per se legal or illegal and instead subdivides the world of intelligence collection into constituent state acts. That is, it disregards a preoccupation with form (“intelligence collection”) and instead examines law governing specific conduct (for example, invasive surveillance, conduct of diplomats, interrogation, and so forth).[8]

But international law is much less agnostic in relation to the exercise by states of physical powers on the territories of other states, or in relation to human beings—conduct that when done secretively may fall within the scope of what is generally called “covert action.” Covert action designed to directly affect or influence people or the course of events often engages primordial rules of international law, particularly those of state sovereignty and the concomitant prohibition on intervention in the affairs of other states. International law has not singled out covert action and imposed redundant injunctions against activities that would already be unlawful if done overtly. But the absence of an extra-special admonishment against covert action does not amount to the same silence identified by commentators in discussing the lawfulness of spying. The surreptitious nature of a state’s conduct does not change its legal status, although it may change the politics surrounding it. There is, therefore, no principled basis to conclude that covert action per se falls into an area in which, to quote the famous S.S. Lotus case, states are permitted a “wide measure of discretion.”[9]

That is not to say that covert action lacks for justifications. One defense of covert action against legal formalism may rely on exceptionalism, urging the virtue of the cause prompting states to exercise covert powers.[10] In this respect, covert action may sometimes be assigned the same label as NATO’s 1999 Kosovo air campaign: illegal, but legitimate.[11] A second, possibly related justification may be simple realpolitik. States will not tarry over legal formalism when supreme security interests are at stake. However, both exceptionalism and realpolitik are unappealing justifications in a multipolar world in which many states may now be in a position to partake in potentially destabilizing covert actions. Moreover, their simple invocation risks abandoning legal formalism without superimposing workable policy guidelines to regulate covert action.

Confronted with this problem, Professor W. Michael Reisman and Judge James Baker have described the “myth system” of international law—that is, its doctrine—and juxtaposed it with the quite different state practice in the area of covert actions.[12] Reconciling the doctrinal myths of international law with this “operational code” means “that determinations of lawfulness in particular cases must . . . use a more comprehensive, consequentialist, and policy-sensitive approach.”[13]

In her article, Professor Deeks takes up this challenge by dividing international law applicable to intelligence activities into two “baskets”: a basket of rules that “is relatively detailed and focuses on protecting individuals”—such as international humanitarian and human rights law—and a basket of state-focused “rules such as respect for state sovereignty and territorial integrity, [that] regulates state-to-state activity.”[14]

She then advocates a hybridized, sliding-scale approach to international law and intelligence activity, urging more robust legal compliance in relation to individual-protecting rules and a policy closer to realpolitik in relation to state-centric rules.[15] Her motivation for doing so is largely pragmatic: If legal formalism wishes to “gain traction among states with robust intelligence capacities, it must allow states to adapt their international law interpretations to the special circumstances engendered by secret state activities, accepting that states require greater flexibility in interpreting some bodies of international law.”[16]

In this Essay, I offer a response to this model and review the rules of international law as they relate to intelligence activities. In Part I, I dissect the concept of “intelligence activities” and distinguish international law as applicable to spying from that relevant to covert actions. I urge that while international law is silent on spying per se, it is engaged by specific activities that rise to the level of intervention in a state’s sovereign affairs and that transgress the bar on the extraterritorial exercise of enforcement jurisdiction. There are, therefore, international norms that may readily be violated by at least some sorts of covert actions, above and beyond human rights principles that protect individuals. Ambiguity exists, but should not be overclaimed.

In Part II, I contemplate the virtues of tempering legal formalism in favor of a sliding scale in the area of international law and intelligence activities. While sympathetic to the necessity for pragmatism, I ask whether the sliding scale may result in the weakening of norms better served by being honored in the breach rather than abandoned in the name of realism.

I. International Law and “Intelligence Activity”

Noting the difficulty of definition, Professor Deeks describes intelligence activity as “both intelligence collection and covert activities undertaken by intelligence services, except for uses of force that would implicate Article 2(4) of the U.N. Charter, such as targeted killings overseas.”[17] This definition sweeps wide, and on its face includes everything that falls short of the threat or use of force against another state’s territorial integrity or political independence prohibited by Article 2(4), from open-source information collection to even covert assassinations. This is especially true if “covert action” is defined in accordance with U.S. law: “[A]n activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly.”[18]

A. A Typology of Intelligence

Most commentators focusing on international law and intelligence activities have defined their subject matter more narrowly than Professor Deeks, confining their topic to spying, “peacetime espionage,” or surreptitious intelligence collection.[19] Here, there is little doubt that international law contains no emphatic prohibitions. Where their discussions touch on covert actions, observers have often been much less equivocal about international law’s uncertainty.[20] Put another way, there is a regularly accepted legal dichotomy between spying and covert activity. On the spying side of that divide, international law is largely silent, promoting efforts to piece together rules from various collateral international law disciplines.[21] There may be instances, for example, where methods of intelligence collection trigger international human rights law,[22] although claims in this area should not be exaggerated.[23] On the covert action side, international law is much more certain, a matter I discuss in the next Section.

B. International Law and Covert Action

The frequent starting point for many discussions of international law and both espionage and covert action is the Lotus principle, a reference to the Permanent Court of International Justice’s 1927 judgment in Turkey v. France.[24] Commentators have pointed to this case in urging, “what is not prohibited is permitted in international law.”[25] And building on this doctrine, Commander Michael Adams has urged the existence of a security-preoccupied jus extra bellum—the “state’s right outside of war.”[26]

But permissiveness as the default position on the exercise of state power does not displace rules that do prohibit, or at least constrain, its exercise. This indeed was the position reached by the International Court of Justice (“ICJ”), confronted with the Lotus principle in the Nuclear Weapons Advisory Case.[27]

1. Sovereignty and Nonintervention

Some covert actions that have consequences on individuals obviously engage human rights principles (for example, detention, disappearances, and torture). Here, however, I focus on a less precise but equally obvious constraint on covert action: sovereignty. Sovereignty contains several ingredients, one of which is the principle of nonintervention—part of customary international law.[28] Professor Deeks correctly observes that the precise content of the broad principles such as sovereignty and nonintervention can be nebulous.[29] There are, however, at least some markers. For instance, in Nicaragua v. United States, the ICJ concluded that, at minimum, the principle of nonintervention

forbids all States or groups of States to intervene directly or indirectly in internal or external affairs of other States. A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy.[30]

In the particular context of the Nicaragua matter, the ICJ concluded that prohibited interventions included “methods of coercion,” even when these fell short of use of force.[31] On a similar basis, some commentators have concluded that to constitute unlawful intervention, “the interference must be forcible or dictatorial, or otherwise coercive, in effect depriving the state intervened against of control over the matter in question. Interference pure and simple is not intervention.”[32]

Notably, coercion in this context likely means more than direct, physical compulsion. As one authority describes it, “[c]oercion in inter-State relations involves the government of one State compelling the government of another State to think or act in a certain way by applying various kinds of pressure, threats, intimidation or the use of force.”[33] These strictures would clearly implicate some forms of covert action. Thus, commentators have suggested coercive interference includes manipulation of “elections or of public opinion on the eve of elections, as when online news services are altered in favour of a particular party, false news is spread, or the online services of one party are shut off.”[34]

2. Enforcement Jurisdiction

Noninterference is not the only international rule engaged by covert actions. The Lotus decision itself acknowledges more general boundaries. Right after asserting its famous adage that “[r]estrictions upon the independence of States cannot . . . be presumed,” the court voiced an equally famous observation:

[T]he first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention.[35]

The exercise of state power is known as “enforcement jurisdiction,” and the prohibition on the imposition of nonconsensual enforcement jurisdiction extraterritorially, that is, on the territory of another state, remains a bedrock principle of international law: “[T]he legal regime applicable to extraterritorial enforcement is quite straightforward. Without the consent of the host State such conduct is absolutely unlawful because it violates that State’s right to respect for its territorial integrity.”[36]

Because enforcement jurisdiction rules do impose definite limitations on the powers states may exercise on the territory of other states, the legality of the covert action depends entirely on its nature. International law certainly precludes nonconsensual, extraterritorial conduct jure imperii—that is, involving the exercise of government functions.[37] And so, it reaches a state’s use of physical force on the territory of another state (such as an arrest and abduction).[38] A state agent entering a foreign territory in his or her official capacity without permission also transgresses this standard.[39] As Professor Simon Chesterman argues, the limitation on extraterritorial enforcement jurisdiction

would clearly prohibit unauthorized entry into territory; it would also extend to unauthorized use of territory, such as Italian claims that CIA agents abducted an Egyptian cleric in Milan in February 2003 to send him to Egypt for questioning regarding alleged terrorist activities. It would also cover the use of territorial airspace to transfer such persons as part of a programme of ‘extraordinary renditions.’[40]

The most famous exercise of covert extraterritorial enforcement jurisdiction was the Israeli abduction of Nazi war criminal Adolph Eichmann in 1960, when Mossad agents covertly snatched Eichmann from Argentina.[41] Argentina’s foreign minister protested, declaring the conduct “contrary to international norms,”[42] while Argentina’s ambassador to the United Nations called the kidnapping an infringement of Argentina’s sovereignty.[43] Argentina submitted a complaint to the UN Security Council, precipitating an unusual resolution from the Council.[44] That resolution declared that acts such as the kidnapping “affect the sovereignty of a Member State,” “cause international friction,” and may “endanger international peace and security.”[45] The Security Council further called on Israel to offer reparations.[46] Following negotiations, Argentina and Israel settled the matter, but also issued a joint communiqué acknowledging the role of Israeli nationals in the breach of Argentine sovereignty.[47]

Eichmann-style abduction constitutes an unequivocal exercise of state powers. Some commentators further assert that because of the limitations on enforcement jurisdiction, states are “also disentitled to carry out investigations in a foreign country, if it is their purpose to pursue and enforce its prerogative rights such as its criminal, administrative or fiscal jurisdiction.”[48] Examples include “gathering information in one State for enforcing revenue laws of another State.”[49] More generally, without consent, a state may not “send its police officers, even if they are in civilian clothes, into foreign States to investigate crimes or make enquiries affecting investigations in their own country. Nor can it allow spies or informers to operate abroad.”[50]

As already noted, there is considerable doubt as to the validity of the last statement concerning spying. There is also a view that noncoercive, peaceful investigations undertaken by one state on the territory of another involving the collection of (at least) information concerning the antitrust and tax activities of its expatriates comply with international law.[51] It stands to reason, however, that the international legality of that investigation becomes more doubtful where the territorial state’s laws are breached in the course of the investigation. As one commentator urges in discussing extraterritorial state action, “the local law should be used to determine whether the pertinent exercise of sovereignty can be viewed as a valid exercise of State authority.”[52]

C. International Law and the Cyber Headache

Until recently, there was an obvious territorial element to covert actions—and indeed, almost all intelligence activity —that eased the assessment of legality. For instance, an agent was either acting physically on the territory of a foreign state, or not.

The communications revolution, however, has changed the physical locus of at least some state action and has therefore created awkward questions for geocentric international law. Does the simple act of a state reaching out from a computer on its own territory to penetrate a server in the territory of another violate the server state’s sovereignty? Does this amount to the exercise of extraterritorial enforcement jurisdiction?

The answers to these questions are not obvious. Certainly, the consequence of the hack may color the assessment of its legality. Considerable analysis has focused on whether a cyber act visiting physical damage on the receiving state constitutes a use of force within the meaning of jus ad bellum rules.[53] More difficult are circumstances when the penetration falls short of physical destructiveness, but involves the more passive co-option of, for instance, foreign government communications networks to monitor communications or spread corrupted data.

Intrusiveness of this sort plausibly amounts to the exercise of state power on the territory of another state, raising sovereignty concerns. In 2007, a Canadian Federal Court judge concluded that intrusive surveillance (presumably involving electronic wiretaps) conducted by the Canadian Security Intelligence Service (“CSIS”) on the territory of another state without its consent would violate that state’s sovereignty.[54] A second judge then distinguished that holding where the intercept, while directed abroad, took place entirely from Canadian soil.[55] It was never entirely clear to this author from the limited public record in this case how an intrusive intercept of a foreign communication could be done within Canada without reaching out (electronically) and hacking communications overseas, in presumptive violation of some foreign law. More significantly, subsequent controversy stemmed from CSIS’s nonobservance of this Canadian territorial expectation. CSIS, in coordination with Canada’s signals-intelligence service, outsourced the intercept function to (unnamed) “Five Eyes” partner intelligence agencies, which include the U.S. National Security Agency.[56] Intrusive surveillance was not, therefore, confined to the territory of Canada and was instead conducted by foreign partners.[57] Moreover, this intrusive surveillance by Five Eyes members was not limited to those agencies’ own territories and involved intrusive surveillance in third-party states.[58] In effect, CSIS had outsourced conduct that the first judge had viewed as inconsistent with international law.

The question of whether invasive (but nondestructive) cyber penetration of this sort truly breaches international law was addressed, in part, in the Tallinn Manual on International Law Applicable to Cyber Warfare.[59] A private project involving international experts, the Manual constitutes the most comprehensive treatment of the topic to date; however, it does not resolve the doubt. In keeping with the discussion above, the Manual urges, “international law does not address espionage per se. Thus, a State’s responsibility for an act of cyber espionage conducted by an organ of the State in cyberspace is not [to] be engaged as a matter of international law unless particular aspects of the espionage violate specific international legal prohibitions.”[60] On the topic of cyber operations going beyond spying, the Manual notes:

A cyber operation by a State directed against cyber infrastructure located in another State may violate the latter’s sovereignty. It certainly does so if it causes damage. The International Group of Experts could achieve no consensus as to whether the placement of malware that causes no physical damage (as with malware used to monitor activities) constitutes a violation of sovereignty.[61]

Nevertheless, it concluded that “intrusion into another State’s systems does not violate the non-intervention principle . . . even where such intrusion requires the breaching of protective virtual barriers” such as firewalls or the cracking of passwords.[62] The litmus test is the concept of coercion, discussed above.

However, the Manual does not address the supplemental question of whether remote intrusion onto the territory of another state through cyber means constitutes an unlawful exercise of enforcement jurisdiction. At the very least, applying the doctrine discussed above, it seems likely that a cyber intrusion that requires the manipulation of cyber assets in a foreign state (through hacking or otherwise) does constitute an exercise of extraterritorial state power. This is not like remote sensing involving passive sensors located outside the territory of the state. Instead, this involves the transmission of electrical impulses in a manner that changes (and does not simply observe) the status quo in a foreign state. While it is true that the physical intrusion is minimal, I am not aware of any authority demonstrating that the legality of enforcement jurisdiction depends on the scale of the physical presence.[63] Indeed, to the extent that hacking violates local law, the intrusion is probably better described as an “encroachment of high intensity,”[64] an assertion consistent with the observation above on the role of territorial law in determining the legitimacy of the foreign state’s extraterritorial conduct. This is especially the case where, as here, international treaties oblige states to prohibit cyber hacking.[65] This is not, in other words, an idiosyncratic local law.

II. Sliding Scale, Legitimacy, and Legality

From the discussion above, the state of international law in relation to peacetime intelligence activities might best be described as follows:

Intelligence collection is not per se regulated by international law, although sufficiently intrusive collection can be tantamount to covert action.
Covert action is regulated by international law to the extent it amounts to coercive interference into the affairs of another state or the nonconsensual exercise of state powers on the territory of another state.
In both instances, the precise nature of the intelligence activity may trigger application of more specific international rules concerning, for instance, human rights or other specialized regimes implicated by the state conduct at issue.

Ambiguity occasionally exists in the precise application of these rules, but only on the margins. For instance, it is not entirely clear what state conduct constitutes the improper jure imperii. Does it include, for instance, simple investigations? Does it reach cyber intrusions? It seems safe to say, however, that the more kinetic or physical the state conduct and the more inconsistent with territorial state laws, the more likely it is to amount to a wrongful exercise of enforcement jurisdiction. And the more consequential the impact on the foreign state, the more likely it constitutes intervention violating that state’s sovereignty. While greater definitional precision would always be useful, these are workable standards on which any legal advisor adequately apprised of the facts should be able to give advice.

The take-home point is this: To the extent that commentators are inclined to treat intelligence activities as a unique area immunized from international law or subject to some special, more relaxed lex specialis, they exaggerate considerably. The residual question is, however, the one that animates Professor Deeks’s article: Namely, how should international lawyers respond to the reality that states do and will engage in intelligence activities, regardless of the niceties of international law? Building on the projects of other authors who have suggested their own criteria,[66] Professor Deeks’s solution is a “sliding scale” that retreats from legal formalism in an effort to graft principled policy constraints on intelligence activities.[67]

The resulting guidelines hinge on four variables: (1) risk of error and quantum of harm, (2) state or non-state target involved, (3) the specificity of the international rule applicable to the situation, and (4) covert action done in support of a goal for which other, overt activities are permissible (for example, election bribery undertaken to influence policies that could be influenced overtly through foreign assistance).[68] Applying these factors, Professor Deeks urges:

When engaged in intelligence activities that target actors not associated with governments, states should interpret strictly (in favor of the target) international rules that clearly address themselves to the type of harm the intelligence service is contemplating inflicting and that function to minimize the risk that a state will erroneously undertake a particular harmful activity against an individual. In contrast, when states undertake more traditional intelligence activities that primarily implicate the equities of other states, states should be permitted greater flexibility in interpreting relevant international law.[69]

The Deeks model has the significant virtue of incorporating international law into the intelligence activity calculus. It opens the door to a wide margin of appreciation for states where that law is ambiguous, but also where the consequences are less dire. It narrows that margin where the law is more precise, and especially where the conduct affects human rights. In this manner, it offers a way of prying open the door for law to an area of state conduct in which international law has figured modestly, if at all, in state decision making.

However, at its core, the sliding scale “anticipates and accepts gradations of interpretation of international law.”[70] A clear objection to the approach—as to any form of pragmatism—is that it does not operate to give international law primacy in any instance. Unquestionably, the subordination of international law is the way of the world: International law colors state discourse without governing the outcomes of state decisions, at least for matters of high politics. The residual question, however, is whether it should also be the way of the law. It is quite one thing to say that international law is sometimes ignored. It is another to say its content should vary according to a pragmatic calculus.

Professor Deeks’s bet is that an approximation of international law in intelligence activities, leavened by other considerations, is better than an indifference to it. This is a reasonable compromise of real utility to legal advisors fighting a rear-guard action against expediency. But to the extent these compromises are conflated as the rules themselves, this system risks moderating the (ideally, constraining) political risk that accompanies violations of international law. Legal formalism may not reflect the way things are done, but it is often the looking glass through which state conduct is evaluated. As Professor Nigel White argues, international legal rules may be weak compared to contingent preoccupations that drive state security behavior, “but given that the latter is just a short-hand term for power and self-interest, the formal laws remain as constraints, no matter how weak, on power.”[71]

Put another way, international law approximates a grammar of international relations. Like the grammar of any language, it does not dictate precisely what is said. But it does bind how that thing can be said. With grammar (at least in the English language), no central authority dictates its proper form. Instead, that form is decided organically through shared use. It is subject to change, sometimes even radical change, but it is almost always possible to say a particular usage is grammatical or not at any particular point. And those who use the language are then judged on their command of grammar, creating peer incentives toward conformity with generally-accepted usage.

The trouble with pragmatism as a tool for deciding the actual content of international law is that it loosens these “grammatical” constraints, unmooring international relations from any fixed (or at least slowly evolving) shared index of propriety. For its part, a formalist defense of international law in intelligence activities is not (just) a form of rule-bound inflexibility or naïve idealism. It also stems from a policy preoccupation: It is better to protect law, and accept that questions of expediency may deprioritize legality in the calculus conducted by states, than to “collapse[] any distinction between law and politics, between breach and compliance.”[72]

Professor Deeks’s guidelines are compelling policy, but in trying to bridge the gap between what Reisman and Baker call the “myth” and the actual “operational code” of international law, they are inspired by, but merely approximate, doctrine.[73] As such, they are simply a contingent choice. That makes them arbitrary: They are fully mutable as between states and governments. States would differ in the emphases they place on elements of the Deeks calculus—and on whether they accept those elements at all. And as for governments: They come and go, and some may be willing to place a heavier thumb on those variables, thus permitting a wider range of arbitrary state action. International lawyers should, however, always be able to speak clearly to the legality of this conduct, whatever the mood of any given administration.

[1]Wilhelm G. Grewe, The Role of International Law in Diplomatic Practice, 1 J. Hist. Int’l L. 22, 26 (1999).

[2]For a leading articulation of legal pragmatism and international law, see Michael J. Glennon, The Fog of Law: Pragmatism, Security, and International Law (2010).

[3]Ashley S. Deeks, Confronting and Adapting: Intelligence Agencies and International Law, 102 Va. L. Rev. 599, 600–01 (2016).

[4]Craig Forcese, Spies Without Borders: International Law and Intelligence Collection, 5 J. Nat’l Sec. L. & Pol’y 179, 204–05 (2011).

[5]Iñaki Navarrete, L’espionnage en Temps de Paix en Droit International Public, 53 Canadian Y.B. Int’l L. (forthcoming 2016) (manuscript at 17) (on file with the Virginia Law Review Association).

[6]U.S. Dep’t of Def., JP 1-02, Dictionary of Military and Associated Terms 114 (2010) (as amended through Feb. 15, 2016), http://www.fas.org/irp/doddir/dod/jp1_02.pdf [https://perm‌a.cc/EN7S-YFZP].

[7]A. John Radsan, The Unresolved Equation of Espionage and International Law, 28 Mich. J. Int’l L. 595, 595 (2007).

[8]See Forcese, supra note 4; Navarrete, supra note 5.

[9]S.S. Lotus (Fr. v. Turk.), Judgment, 1927 P.C.I.J. (ser. A) No. 10, at 18–19 (Sept. 7).

[10]To some extent, exceptionalism drives aspects of W. Michael Reisman & James E. Baker, Regulating Covert Action: Practices, Contexts, and Policies of Covert Coercion Abroad in International and American Law (1992).

[11]Indep. Int’l Comm’n on Kos., The Kosovo Report: Conflict, International Response, Lessons Learned 4 (2000).

[12]Reisman & Baker, supra note 10, at 48.

[13]Id.

[14]Deeks, supra note 3, at 604.

[15]Id. at 605–06.

[16]Id. at 606.

[17]Id. at 600 n.1 (internal punctuation omitted).

[18]50 U.S.C.A. § 3093(e) (West 2014).

[19]See Christopher D. Baker, Tolerance of International Espionage: A Functional Approach, 19 Am. U. Int’l L. Rev. 1091, 1091 (2004) (describing espionage as “curiously ill-defined under international law”); Gary D. Brown & Andrew O. Metcalf, Easier Said than Done: Legal Reviews of Cyber Weapons, 7 J. Nat’l Sec. L. & Pol’y 115, 117 (2014); Simon Chesterman, The Spy Who Came in from the Cold War: Intelligence and International Law, 27 Mich. J. Int’l L. 1071, 1072, 1074–75 (2006); Ingrid Delupis, Foreign Warships and Immunity for Espionage, 78 Am. J. Int’l L. 53, 53 (1984); Geoffrey B. Demarest, Espionage in International Law, 24 Denv. J. Int’l L. & Pol’y 321, 323 (1996); Dieter Fleck, Individual and State Responsibility for Intelligence Gathering, 28 Mich. J. Int’l L. 687, 687–88 (2007); Forcese, supra note 4, at 180–81; Manuel R. Garcia-Mora, Treason, Sedition and Espionage as Political Offenses Under the Law of Extradition, 26 U. Pitt. L. Rev. 65, 79–80 (1964); Myres S. McDougal, Harold Lasswell & W. Michael Reisman, The Intelligence Function and World Public Order, 46 Temp. L.Q. 365, 368, 394–95 (1973); Navarrete, supra note 5; W. Hays Parks, The International Law of Intelligence Collection, in National Security Law 433, 433–34 (John Norton Moore et al. eds., 1990); A. John Radsan, The Unresolved Equation of Espionage and International Law, 28 Mich. J. Int’l L. 595, 595–96 (2007); Roger D. Scott, Territorially Intrusive Intelligence Collection and International Law, 46 A.F. L. Rev. 217, 223 (1999); Daniel B. Silver, Intelligence and Counterintelligence, in National Security Law 935 (John Norton Moore & Robert F. Turner eds., 2d ed. 2005) (as updated and revised by Frederick P. Hitz and J.E. Shreve Ariail) (describing the status of espionage in international law as “ambiguous”); Jeffrey H. Smith, Keynote Address at the University of Michigan Journal of International Law Symposium: State Intelligence Gathering and International Law (Feb. 9, 2007), in 28 Mich. J. Int’l L. 543, 544 (2007); Glenn Sulmasy & John Yoo, Counterintuitive: Intelligence Operations and International Law, 28 Mich. J. Int’l L. 625, 625 (2007) (arguing that international law “has had little impact on the practice of intelligence gathering”); Quincy Wright, Espionage and the Doctrine of Non-Intervention in Internal Affairs, in Essays on Espionage and International Law 3 (Roland J. Stanger ed., 1962).

[20]See, e.g., Brown & Metcalf, supra note 19, at 116–17 (noting the legal distinction between cyber-spying and “more aggressive activity in this operations space” may be difficult to maintain in practice); Chesterman, supra note 19, at 1073 (“[C]overt action that causes property damage to the target state or harms its nationals might properly be the subject of state responsibility.”); Demarest, supra note 19, at 330 (“Covert action—whether legally supportable or insupportable when conducted—has a relationship to international legal proscription and mandates already defined by customary international law and the United Nations Charter.”); Fleck, supra note 19, at 692–93 (listing a series of covert actions that “can never be justified under customary law because they are gross violations of commonly accepted legal principles” and stating, “[t]he fact that they are committed through clandestine action offers a strong argument against the existence of any alleged opinio juris covering such conduct in international relations between states”); Smith, supra note 19, at 545 (suggesting that while intelligence collection is tolerated by international law, covert action is prohibited). But see Robert D. Williams, (Spy) Game Change: Cyber Networks, Intelligence Collection, and Covert Action, 79 Geo. Wash. L. Rev. 1162, 1178–79 (2011) (suggesting “[t]he status of covert action under international law is at least as uncertain as the status of espionage” but also noting “there is no bright-line rule regarding the legal status of covert actions: some may be lawful, others unlawful”).

[21]See, e.g., Forcese, supra note 4, at 185; Navarrete, supra note 5, at 44. See also discussion in Simon Chesterman, Secret Intelligence, in 4 The Max Planck Encyclopedia of Public International Law 66 (Rüdiger Wolfrum ed., 2012) (entry last updated Jan. 2009); Christian Schaller, Spies, in 9 The Max Planck Encyclopedia of Public International Law, supra, at 435 (entry last updated Apr. 2009).

[22]See discussion in Forcese, supra note 4, at 180, 186.

[23]Craig Forcese, Creative Ambiguity—International Law’s Distant Relationship with Peacetime Spying, Just Security (Nov. 14, 2013, 8:30 AM), https://www.justsecurity.org‌/316‌8/guest-post-creative-ambiguity-international-laws-distant-relationship-peacetime-spying [https://perma.cc/J5PK-DY73].

[24]S.S. Lotus (Fr. v. Turk.), Judgment, 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7).

[25]Armin von Bogdandy & Markus Rau, The Lotus, in 6 The Max Planck Encyclopedia of Public International Law, supra note 21, at 946, 948 ¶ 15 (entry last updated June 2006).

[26]Michael Jefferson Adams, Jus Extra Bellum: Reconstructing the Ordinary, Realistic Conditions of Peace, 5 Harv. Nat’l Sec. J. 377, 406 (2014).

[27]Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. Rep. 226, ¶¶ 21–22 (July 8).

[28]Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14, ¶ 202 (June 27).

[29]Deeks, supra note 3, at 643.

[30]Military and Paramilitary Activities in and Against Nicaragua, 1986 I.C.J. Rep. 14, ¶ 205.

[31]Id.

[32]1 Oppenheim’s International Law: Peace 432 (Robert Jennings & Arthur Watts eds., 9th ed. 1992).

[33]Christopher C. Joyner, Coercion, in 2 The Max Planck Encyclopedia of Public International Law, supra note 21, at 296, 297 ¶ 1 (entry last updated Dec. 2006).

[34]Int’l Grp. of Experts, NATO Coop. Cyber Def. Ctr. of Excellence, Tallinn Manual on the International Law Applicable to Cyber Warfare 45 (Michael N. Schmitt ed., 2013) [hereinafter Tallinn Manual].

[35]S.S. Lotus, 1927 P.C.I.J. (ser. A) No. 10, at 18–19.

[36]Menno T. Kamminga, Extraterritoriality, in 3 The Max Planck Encyclopedia of Public International Law, supra note 21, at 1070, 1075 ¶ 22 (entry last updated Mar. 2008).

[37]Guy Stessens, Money Laundering: A New International Law Enforcement Model 280 (2000).

[38]F.A. Mann, The Doctrine of International Jurisdiction Revisited After Twenty Years, in 186 Collected Courses of the Hague Academy of International Law 9, 38–39 (1984).

[39]Alexander Orakhelashvili, Governmental Activities on Foreign Territory, in 4 The Max Planck Encyclopedia of Public International Law, supra note 21, at 553, 556 ¶ 15 (entry last updated July 2010).

[40]Chesterman, supra note 21, at 68, ¶ 14; see also Fleck, supra note 19, at 692–93 (arguing that covert actions that “can never be justified under customary law because they are gross violations of commonly accepted legal principles” include “unauthorized entry into a foreign state’s airspace or territory, illegal exercise of jurisdiction on foreign territory, attempts to destabilize the government of another state, and common crimes, such as bribery, blackmail, unlawful entry into residences, or a breach of data protection laws committed in the course of such acts” (footnotes omitted)).

[41]Stephan Wilske, Abduction, Transboundary, in 1 The Max Planck Encyclopedia of Public International Law, supra note 21, at 4, 5 ¶ 2 (entry last updated March 2009); Raanan Rein, The Eichmann Kidnapping: Its Effects on Argentine-Israeli Relations and the Local Jewish Community, Jewish Soc. Stud., Spring/Summer 2001, at 101, 105.

[42]Rein, supra note 41, at 106 (citing Letter from Arieh Levavi, then-Ambassador to Argentina, to the Foreign Ministry of Israel (June 2, 1960)).

[43]Id. at 108.

[44]Id. at 109.

[45]See S.C. Res. 138, ¶ 1(June 23, 1960).

[46]Id. ¶ 2.

[47]Rein, supra note 41, at 110–11.

[48]F.A. Mann, The Doctrine of Jurisdiction in International Law, in 111 Collected Courses of the Hague Academy of International Law 1, 138 (1964).

[49]Orakhelashvili, supra note 39, at 556, ¶ 14.

[50]Mann, supra note 48, at 139 (footnote omitted).

[51]François Rigaux, Droit Public et Droit Privé dans les Relations Internationales 321 (1977); cf. Stessens, supra note 37, at 281 (discussing that when it comes to noncoercive measures, the question of incompatibility with international law is not as clear-cut as with coercive measures, but that these are still arguably problematic).

[52]Orakhelashvili, supra note 39, at 556, ¶ 14.

[53]See, e.g., Tallinn Manual, supra note 34, at 42.

[54]Can. Sec. Intelligence Servs. Act (Re), 2008 FC 301, ¶¶ 2, 51, 62, 69, 71 (Can.).

[55]X (Re), 2009 FC 1058, ¶¶ 40–47 (Can.).

[56]X (Re), 2014 FCA 249, ¶¶ 6–11 (Can.).

[57]Id. ¶¶ 6–18.

[58]X (Re), 2013 FC 1275, ¶¶ 102–15 (Can.).

[59]Tallinn Manual, supra note 34, at 1–5.

[60]Id. at 30.

[61]Id. at 16.

[62]Id. at 44–45.

[63]For a discussion of whether a de minimis standard should exist for cross-border electronic searches, see Nicolai Seitz, Transborder Search: A New Perspective in Law Enforcement?, 7 Yale J.L. & Tech. 23, 42–44 (2004–05). But see Navarrete, supra note 5, at 24 (arguing that there should be a de minimis concept associated with the physical intrusion associated with cyber surveillance).

[64]Seitz, supra note 63, at 43.

[65]Council of Europe, Convention on Cybercrime, ch. II, sec. 1, tit. 1, Nov. 23, 2001, C.E.T.S. No. 185.

[66]See, e.g., Reisman & Baker, supra note 10, at 1–2, 136–43. For a different set of guidelines, see Loch K. Johnson, On Drawing a Bright Line for Covert Operations, 86 Am. J. Int’l L. 284, 305–09 (1992).

[67]Deeks, supra note 3, at 667–85.

[68]Id. at 671–75.

[69]Id. at 605.

[70]Id. at 669.

[71]Nigel D. White, Advanced Introduction to International Conflict and Security Law 71 (2014).

[72]Id. at 70.

[73]See supra note 12 and accompanying text.

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