21 November 2013
US Plan to Kill Online Privacy Rights Everywhere
Exclusive: Inside America's Plan to Kill Online Privacy Rights Everywhere
Posted By Colum Lynch Wednesday, November 20, 2013 - 6:10 PM Share
The United States and its key intelligence allies are quietly working behind
the scenes to kneecap a mounting movement in the United Nations to promote
a universal human right to online privacy, according to diplomatic sources
and an internal American government document obtained by The Cable.
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.
Follow me on Twitter: @columlynch.