Even before Ed Snowden leaked his first document, human rights lawyers and activists were concerned about law enforcement and intelligence agencies spying on the digital world. One of the tools developed to tackle those concerns was the development of the International Principles on the Application of Human Rights to Communications Surveillance (the "Necessary and Proportionate Principles"). This set of principles was intended to guide governments in understanding how new surveillance technologies eat away at fundamental freedoms, and outlined how communications surveillance can be conducted consistent with human rights obligations. Furthermore, the Necessary and Proportionate Principles act as a resource for citizens—used to compare new tools of state surveillance to global expectations of privacy and due process.
We are now able to look at how the NSA's mass surveillance programs, which we have learned about in the past year, fare when compared to the Necessary and Proportionate Principles.
As you might expect, the NSA programs do not fare well. To mark the first anniversary of the Snowden disclosures, we are releasing Unnecessary and Disproportionate, which details how some of the NSA spying operations violate both human rights standards and the Necessary and Proportionate Principles.
Some of the conclusions are as follows:
- The NSA surveillance lacks "legality" in that NSA surveillance laws are largely governed by a body of secret law developed by a secret court, the Foreign Intelligence Surveillance Court (FISC), which selectively publishes its legal interpretations of the law;
- The NSA surveillance is neither "necessary," nor "proportionate," in that the various programs in which communications data are obtained in bulk violate the privacy rights of millions of persons who are not suspected of having any connection to international terrorism;
- The NSA surveillance programs are not supported by competent judicial authority because the only judicial approval, if any, comes from the FISC, which operates outside of normal adversarial procedures such that the individuals whose data are collected lack access to the court;
- The NSA surveillance programs lack due process because the FISC presents no opportunity for a public hearing;
- The NSA surveillance programs lack user notification: those whose data is obtained do not know that their communications have been monitored and hence they cannot appeal the decision nor get legal representation to defend themselves;
- The NSA surveillance programs lack the required transparency and public oversight, because they operate in secret and rely on gag orders against the entities from whom the data are obtained, along with secret, if any, court proceedings;
- The NSA surveillance programs damage the integrity of communication systems by undermining security systems, such as encryption, requiring the insertion of surveillance back doors in communications technologies, including the installation of fiber optic splitters in transmission hubs; and
- The US surveillance framework is illegitimate because it applies less favorable standards to non-US persons than its own citizens; this discrimination places it in violation of the International Covenant on Civil and Political Rights (ICCPR).
More broadly, the United States justifies the lawfulness of its communications surveillance by reference to distinctions that, considering modern communications technology, are irrelevant to truly protecting privacy in a modern society. The US relies on the outmoded distinction between "content" and "metadata," falsely contending that the latter does not reveal private facts about an individual. The US also contends that the collection of data is not surveillance—it argues, contrary to both international law and the Principles, that an individual's privacy rights are not infringed as long as her communications data are not analyzed by a human being. It's clear that the practice of digital surveillance by the United States has overrun the bounds of human rights standards. What our paper hopes to show is exactly where the country has crossed the line, and how its own politicians and the international community might rein it back.