How International Human Rights Law Should Be Applied to NSA Spying

This past Monday, the Human Rights Committee commenced its one hundredth and tenth session in Geneva from March 10-28. During this session, the Committee will review the reports of several countries on how they are implementing the provisions of the International Covenant on Civil and Political Rights (ICCPR), an international human rights treaty and one of the bedrocks of human rights protections.

Countries that have ratified the ICCPR are required to protect and preserve basic human rights through various means including administrative, judicial, and legislative measures.Additionally, these countries are required to submit a report to the Human Rights Committee, a body of independent experts who monitor the implementation of States' human rights obligations, every four years.The United States ratified the ICCPR in 1992 and is thus tied to these obligations, and required to regard the treaty the same as it would any domestic law.The Human Rights Committee will review the US's human rights records on Thursday, March 13. In particular, the Committee will be scrutinizing the US's mass surveillance practices and its compliance with Article 17 on the right to privacy.

At the opening session of the Human Rights Committee meeting, the UN High Commissioner for Human Rights, Navy Pillay, made it clear that the topic of privacy and surveillance is a priority:

"Powerful new technologies offer the promise of improved enjoyment of human rights, but they are vulnerable to mass electronic surveillance and interception. This threatens the right to privacy and freedom of expression and association."

We are pleased that the Human Rights Committee has the opportunity to clarify the scope of United States legal obligations under Article 17 on the right to privacy, especially in light of the recent revelations on mass surveillance leaked by Edward Snowden. Worldwide, the general public is privy to the fact that several US programs have the potential for serious privacy rights violations in the form of mass surveillance both at home and abroad; a blatant violation of the United States' ICCPR obligations.

We are asking the Human Rights Committee to look at the 13 International Principles for the Application of Human Rights to Communications Surveillance—or more commonly, theNecessary and Proportionate Principles, which are supported by over 400 organizations and 300,000 individuals, as a guide for understanding a State Party's compliance with Article 17.

Moreover, the Electronic Frontier Foundation and the Human Rights Watch submitted a joint shadow report that flags several issues for the Human Rights Committee to consider when reviewing the United States' report this Thursday.

Among the main issues are:

I. The US has extraterritorial obligations to uphold the right to privacy of individuals outside its borders

Given the extraordinary capabilities and programs of the US to monitor global communications, the Committee should ask the US to acknowledge that its obligations with respect to the right of privacy apply extraterritorially to persons whose communications it scans or collects.To accept otherwise would defeat the object and purpose of the ICCPR with regard to the privacy of borderless, global digital communications.

Accepting the US's view that the right to privacy does not extend to its actions abroad would defeat the object and purpose of Article 17 as applied to online or digital communications. If states adopted a similar position, it would permit governments to conduct arbitrary or unlawful surveillance on the communications of any persons physically located outside their territory or jurisdiction.This position would thwart efforts of other governments to protect the privacy rights of their own residents if every other government if free to violate that right.The US's position is also contrary to the principle of the universality of rights and suggests that the right to privacy can be abrogated on the basis of citizenship and legal status.

II. Collection of personal information is an interference with privacy

In responding to the Snowden revelations, US government officials have implied that the US does not consider electronic information to have been "collected" until that information is searched or processed in some way.

The Committee should recognize that the acquisition of copying of personal information can constitute an "interference" with the right to privacy under Article 17, regardless of whether the information is subsequently processed, examined, or used by the government.

Furthermore, the US government continues to assert a distinction between the content of communications and "metadata" or transactional data.Communications metadata generally consists of information other than the content of the communications, including the phone number dialed, time or date of a phone call, mobile phone location information, Internet Protocol address, or website URL visited.In litigation challenging its communications surveillance programs, the US maintains that while individuals have a "reasonable expectation of privacy" in the content of their communications, they do not have such an expectation for their metadata, and such metadata enjoys significantly weaker privacy protections.In addition, the US contends that individuals forfeit their privacy rights in information that they share with the third-party company that provides communications services. As a consequence of these two contentions, the US asserts that it may collect metadata from phone and Internet companies without implicating their customers' legal rights to be free from unwarranted searches and seizures.

We hope the Human Rights Committee directly challenges these arguments.

As explained in the "Necessary & Proportionate Principles," traditionally the invasiveness of communications surveillance has been evaluated on the basis of old categories that are no longer appropriate for measuring the degree of the intrusion that communications surveillance makes into individuals' private lives and associations. One of the main considerations in drafting the principles has been to ensure that the level of protection accorded to information properly corresponds to the degree of intrusion into people's lives that can result from access to the data by third parties. Thus any formerly used labels—such as "metadata"—that do not reflect these real-life effects should be rejected.

III. Mass collection of data is fundamentally arbitrary and disproportionate

The Committee should find that mass, indiscriminate collection, search, or retention of electronic information is fundamentally arbitrary and disproportionate.Dragnet searches or collection on large groups without some threshold showing of individualized suspicion that the information to be acquired is necessary to protect national security, or another legitimate interest of the United States, should be presumptively impermissible.

EFF believes the Principles could assist the commission in developing an understanding of the right to privacy in the light of new technologies. Established international human rights law is often still new in terms of its application in the new global digital world, and one of the main aims of the Principles is to provide guidance and make suggestions in that regard; to ensure that individuals do not lose precious protection built up over many years simply because the concepts and approaches developed in a pre-digital world do not always "fit" the new reality. The Principles look beyond the current set of revelations to take a broad look at how modern communications surveillance technologies can be addressed consistently with human rights and the rule of law.

The question remains: If the Human Rights Committee, after reviewing the fourth periodic report of US, provides the member state with recommendations, also known as "concluding observations," will the US finally comply?

Michael Posner, the former assistant secretary for human rights said he hoped the US would "take the next step, which is to say, 'This isn't just policy—it is an international legal obligation.' " Follow along—the entire US ICCPR review will be webcast on UN TV on March 13 and 14.

This post is republished from Electronic Frontier Foundation under Creative Commons license. Image by Tischenko Irina/Shutterstock.