Posted By Colum Lynch
Wednesday, November 20, 2013 - 6:10 PM
The diplomatic battle is playing out in an obscure U.N. General Assembly committee that is considering a proposal by Brazil and Germany to place constraints on unchecked internet surveillance by the National Security Agency and other foreign intelligence services. American representatives have made it clear that they won't tolerate such checks on their global surveillance network. The stakes are high, particularly in Washington -- which is seeking to contain an international backlash against NSA spying -- and in Brasilia, where Brazilian President Dilma Roussef is personally involved in monitoring the U.N. negotiations.
The Brazilian and German initiative seeks to apply the right to privacy, which is enshrined in the International Covenant on Civil and Political Rights (ICCPR), to online communications. Their proposal, first revealed by The Cable, affirms a "right to privacy that is not to be subjected to arbitrary or unlawful interference with their privacy, family, home, or correspondence." It notes that while public safety may "justify the gathering and protection of certain sensitive information," nations "must ensure full compliance" with international human rights laws. A final version the text is scheduled to be presented to U.N. members on Wednesday evening and the resolution is expected to be adopted next week.
A draft of the resolution, which was obtained by The Cable, calls on states to "to respect and protect the right to privacy," asserting that the "same rights that people have offline must also be protected online, including the right to privacy." It also requests the U.N. high commissioner for human rights, Navi Pillay, present the U.N. General Assembly next year with a report on the protection and promotion of the right to privacy, a provision that will ensure the issue remains on the front burner.
Publicly, U.S. representatives say they're open to an affirmation of privacy rights. "The United States takes very seriously our international legal obligations, including those under the International Covenant on Civil and Political Rights," Kurtis Cooper, a spokesman for the U.S. mission to the United Nations, said in an email. "We have been actively and constructively negotiating to ensure that the resolution promotes human rights and is consistent with those obligations."
But privately, American diplomats are pushing hard to kill a provision of the Brazilian and German draft which states that "extraterritorial surveillance" and mass interception of communications, personal information, and metadata may constitute a violation of human rights. The United States and its allies, according to diplomats, outside observers, and documents, contend that the Covenant on Civil and Political Rights does not apply to foreign espionage.
In recent days, the United States circulated to its allies a confidential paper highlighting American objectives in the negotiations, "Right to Privacy in the Digital Age -- U.S. Redlines." It calls for changing the Brazilian and German text so "that references to privacy rights are referring explicitly to States' obligations under ICCPR and remove suggestion that such obligations apply extraterritorially." In other words: America wants to make sure it preserves the right to spy overseas.
The U.S. paper also calls on governments to promote amendments that would weaken Brazil's and Germany's contention that some "highly intrusive" acts of online espionage may constitute a violation of freedom of expression. Instead, the United States wants to limit the focus to illegal surveillance -- which the American government claims it never, ever does. Collecting information on tens of millions of people around the world is perfectly acceptable, the Obama administration has repeatedly said. It's authorized by U.S. statute, overseen by Congress, and approved by American courts.
"Recall that the USG's [U.S. government's] collection activities that have been disclosed are lawful collections done in a manner protective of privacy rights," the paper states. "So a paragraph expressing concern about illegal surveillance is one with which we would agree."
The privacy resolution, like most General Assembly decisions, is neither legally binding nor enforceable by any international court. But international lawyers say it is important because it creates the basis for an international consensus -- referred to as "soft law" -- that over time will make it harder and harder for the United States to argue that its mass collection of foreigners' data is lawful and in conformity with human rights norms.
"They want to be able to say ‘we haven't broken the law, we're not breaking the law, and we won't break the law,'" said Dinah PoKempner, the general counsel for Human Rights Watch, who has been tracking the negotiations. The United States, she added, wants to be able to maintain that "we have the freedom to scoop up anything we want through the massive surveillance of foreigners because we have no legal obligations."
The United States negotiators have been pressing their case behind the scenes, raising concerns that the assertion of extraterritorial human rights could constrain America's effort to go after international terrorists. But Washington has remained relatively muted about their concerns in the U.N. negotiating sessions. According to one diplomat, "the United States has been very much in the backseat," leaving it to its allies, Australia, Britain, and Canada, to take the lead.
There is no extraterritorial obligation on states "to comply with human rights," explained one diplomat who supports the U.S. position. "The obligation is on states to uphold the human rights of citizens within their territory and areas of their jurisdictions."
The position, according to Jamil Dakwar, the director of the American Civil Liberties Union's Human Rights Program, has little international backing. The International Court of Justice, the U.N. Human Rights Committee, and the European Court have all asserted that states do have an obligation to comply with human rights laws beyond their own borders, he noted. "Governments do have obligation beyond their territories," said Dakwar, particularly in situations, like the Guantanamo Bay detention center, where the United States exercises "effective control" over the lives of the detainees.
Both PoKempner and Dakwar suggested that courts may also judge that the U.S. dominance of the Internet places special legal obligations on it to ensure the protection of users' human rights.
"It's clear that when the United States is conducting surveillance, these decisions and operations start in the United States, the servers are at NSA headquarters, and the capabilities are mainly in the United States," he said. "To argue that they have no human rights obligations overseas is dangerous because it sends a message that there is void in terms of human rights protection outside countries territory. It's going back to the idea that you can create a legal black hole where there is no applicable law." There were signs emerging on Wednesday that America may have been making ground in pressing the Brazilians and Germans to back on one of its toughest provisions. In an effort to address the concerns of the U.S. and its allies, Brazil and Germany agreed to soften the language suggesting that mass surveillance may constitute a violation of human rights. Instead, it simply deep "concern at the negative impact" that extraterritorial surveillance "may have on the exercise of and enjoyment of human rights." The U.S., however, has not yet indicated it would support the revised proposal.
The concession "is regrettable. But it’s not the end of the battle by any means," said Human Rights Watch’s PoKempner. She added that there will soon be another opportunity to corral America's spies: a U.N. discussion on possible human rights violations as a result of extraterritorial surveillance will soon be taken up by the U.N. High commissioner.
Right to Privacy in the Digital Age
–
U.S. Redlines 1)
Clarify that references to privacy rights are referring explicitly to States’
obligations under ICCPR and remove suggestion that such obligations apply extra-territorially.
PP5
Reaffirming
the human privacy rights of individuals under Article 17 of the ICCPR, that is to privacy and not to be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence, and the right to enjoy protection of the law against such interferences and attacks
(new, based on article 17 of the ICCPR)
, and recognizing that the exercise of the right to privacy rights is often understood as an essential requirement for the realizationenjoyment of the rights to freedom of expression and to hold opinions without interference, and one of the foundations of a democratic society
(new, based on the report A/HRC/23/40 (para 24) of the Special Rapporteur)
,
At the end of the first line, add “that is” before “not to
be subjected.” This addition is
essential in order not to suggest that there are two sets of privacy rights, one under the ICCPR and the other from some other source. We are seeking the same fix in OP1. OP1.
Reaffirms
the rights contained in article 12 of the Universal Declaration of Human Rights, and in article 17 ofin the International Covenant on Civil and Political Rights, in particular the right to privacy rights, that is and not to be subjected to arbitrary or unlawful interference with privacy, family, home or correspondence, and the right to enjoy protection of the law against such interference or attacks, in accordance with article 12 of the Universal Declaration of Human Rights and article 17 of the International Covenant on Civil and Political Rights
(new)
;
In the third line, replace the “and” before “not to be subjected…” with “that is.” It is
necessary to clarify that these are not two separate rights. This is the same edit proposed for PP5. PP10
Deeply concerned th
at human rights violations and abuses that may result from the abuse of information acquired through the conduct of any surveillance or interception of private communications, including extraterritorial surveillance or interception of private communications, their interception, as well as the collection of personal data, including particular massive surveillance, interception and data collection
(new)
,
In the first line, change “at” to “that” and delete “violations and.” As the text currently
reads, it suggests that states have international human rights obligations to respect the privacy of foreign nationals outside the U.S., which is not the U.S. view of the ICCPR.
2)
Clarify that the focus of the resolution is on “unlawful” or “illegal” surveillance and
interception of communications.
PP8
Emphasizing
that
under ICCPR Article 17, States’
illegal unlawful surveillance and interception of private communications, their interception, as well as the illegal unlawful collection of personal data, constitute a highly intrusive act that violates the right to privacy
rights and may threaten freedom of expression, including the expression of political and religious beliefs, and may threaten the foundations of a democratic society
(new, based on the report A/HRC/23/40 (para 81) of the Special Rapporteur)
,
Add “under ICCPR Article 17,” or change the two references to “illegal” to “unlawful” to
clarify that this paragraph is addressing the obligations under the ICCPR only. It is essential to collapse the references to surveillance and interception of private
communications into one category that is modified by “unlawful.” Replace “their interception” with “and interception” and move it to after “illegal surveillance.”
We understand this paragraph to be referring to surveillance and interception of the content of communications, both of which should be qualified by
“unlawful.” Recall that the USG’s collection activities that have been disclosed are
lawful collections done in a manner protective of privacy rights, so a paragraph expressing concern about illegal surveillance is one with which we would agree. We
suggest moving “interception” on the grounds of bad English syntax (which is fair). In that way, we can have “unlawful” modify all the elements of the paragraph.
3)
Clarify that violations of privacy rights to not necessarily violate freedom of expression.
PP8
Emphasizing
that
under ICCPR Article 17, States’
illegal unlawful surveillance and interception of private communications, their interception, as well as the illegal unlawful collection of personal data, constitute a highly intrusive act that violates the right to privacy rights and may threaten freedom of expression, including the expression of political and religious beliefs, and may threaten the foundations of a democratic society
(new, based on the report A/HRC/23/40 (para 81) of the Special Rapporteur)
,
Move “may threaten” from before “the foundations of a democratic…” to before “freedom of expression.”
We need to clarify that privacy violations could “interfere with” freedom of expression and avoid the inaccurate suggestion that all privacy
violations are violations of freedom of expression.
Follow me on Twitter: @columlynch.
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