1. Exclusive: Inside America's Plan to Kill Online Privacy Rights Everywhere
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3. Posted By Colum Lynch   Wednesday, November 20, 2013 - 6:10 PM     Share
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5. The United States and its key intelligence allies are quietly working behind
6. the scenes to kneecap a mounting movement in the United Nations to promote a
7. universal human right to online privacy, according to diplomatic sources and
8. an internal American government document obtained by The Cable.
9.  
10. The diplomatic battle is playing out in an obscure U.N. General Assembly
11. committee that is considering a proposal by Brazil and Germany to place
12. constraints on unchecked internet surveillance by the National Security
13. Agency and other foreign intelligence services. American representatives have
14. made it clear that they won't tolerate such checks on their global
15. surveillance network. The stakes are high, particularly in Washington --
16. which is seeking to contain an international backlash against NSA spying --
17. and in Brasilia, where Brazilian President Dilma Roussef is personally
18. involved in monitoring the U.N. negotiations.
19.  
20. The Brazilian and German initiative seeks to apply the right to privacy,
21. which is enshrined in the International Covenant on Civil and Political
22. Rights (ICCPR), to online communications. Their proposal, first revealed by
23. The Cable, affirms a "right to privacy that is not to be subjected to
24. arbitrary or unlawful interference with their privacy, family, home, or
25. correspondence." It notes that while public safety may "justify the gathering
26. and protection of certain sensitive information," nations "must ensure full
27. compliance" with international human rights laws. A final version the text is
28. scheduled to be presented to U.N. members on Wednesday evening and the
29. resolution is expected to be adopted next week.
30.  
31. A draft of the resolution, which was obtained by The Cable, calls on states
32. to "to respect and protect the right to privacy," asserting that the "same
33. rights that people have offline must also be protected online, including the
34. right to privacy." It also requests the U.N. high commissioner for human
35. rights, Navi Pillay, present the U.N. General Assembly next year with a
36. report on the protection and promotion of the right to privacy, a provision
37. that will ensure the issue remains on the front burner.
38.  
39. Publicly, U.S. representatives say they're open to an affirmation of privacy
40. rights. "The United States takes very seriously our international legal
41. obligations, including those under the International Covenant on Civil and
42. Political Rights," Kurtis Cooper, a spokesman for the U.S. mission to the
43. United Nations, said in an email. "We have been actively and constructively
44. negotiating to ensure that the resolution promotes human rights and is
45. consistent with those obligations."
46.  
47. But privately, American diplomats are pushing hard to kill a provision of the
48. Brazilian and German draft which states that "extraterritorial surveillance"
49. and mass interception of communications, personal information, and metadata
50. may constitute a violation of human rights. The United States and its allies,
51. according to diplomats, outside observers, and documents, contend that the
52. Covenant on Civil and Political Rights does not apply to foreign espionage.
53.  
54. In recent days, the United States circulated to its allies a confidential
55. paper highlighting American objectives in the negotiations, "Right to Privacy
56. in the Digital Age -- U.S. Redlines." It calls for changing the Brazilian and
57. German text so "that references to privacy rights are referring explicitly to
58. States' obligations under ICCPR and remove suggestion that such obligations
59. apply extraterritorially." In other words: America wants to make sure it
60. preserves the right to spy overseas.
61.  
62. The U.S. paper also calls on governments to promote amendments that would
63. weaken Brazil's and Germany's contention that some "highly intrusive" acts of
64. online espionage may constitute a violation of freedom of expression.
65. Instead, the United States wants to limit the focus to illegal surveillance
66. -- which the American government claims it never, ever does. Collecting
67. information on tens of millions of people around the world is perfectly
68. acceptable, the Obama administration has repeatedly said. It's authorized by
69. U.S. statute, overseen by Congress, and approved by American courts.
70.  
71. "Recall that the USG's [U.S. government's] collection activities that have
72. been disclosed are lawful collections done in a manner protective of privacy
73. rights," the paper states. "So a paragraph expressing concern about illegal
74. surveillance is one with which we would agree."
75.  
76. The privacy resolution, like most General Assembly decisions, is neither
77. legally binding nor enforceable by any international court. But international
78. lawyers say it is important because it creates the basis for an international
79. consensus -- referred to as "soft law" -- that over time will make it harder
80. and harder for the United States to argue that its mass collection of
81. foreigners' data is lawful and in conformity with human rights norms.
82.  
83. "They want to be able to say ‘we haven't broken the law, we're not breaking
84. the law, and we won't break the law,'" said Dinah PoKempner, the general
85. counsel for Human Rights Watch, who has been tracking the negotiations. The
86. United States, she added, wants to be able to maintain that "we have the
87. freedom to scoop up anything we want through the massive surveillance of
88. foreigners because we have no legal obligations."
89.  
90. The United States negotiators have been pressing their case behind the
91. scenes, raising concerns that the assertion of extraterritorial human rights
92. could constrain America's effort to go after international terrorists. But
93. Washington has remained relatively muted about their concerns in the U.N.
94. negotiating sessions. According to one diplomat, "the United States has been
95. very much in the backseat," leaving it to its allies, Australia, Britain, and
96. Canada, to take the lead.
97.  
98. There is no extraterritorial obligation on states "to comply with human
99. rights," explained one diplomat who supports the U.S. position. "The
100. obligation is on states to uphold the human rights of citizens within their
101. territory and areas of their jurisdictions."
102.  
103. The position, according to Jamil Dakwar, the director of the American Civil
104. Liberties Union's Human Rights Program, has little international backing. The
105. International Court of Justice, the U.N. Human Rights Committee, and the
106. European Court have all asserted that states do have an obligation to comply
107. with human rights laws beyond their own borders, he noted. "Governments do
108. have obligation beyond their territories," said Dakwar, particularly in
109. situations, like the Guantanamo Bay detention center, where the United States
110. exercises "effective control" over the lives of the detainees.
111.  
112. Both PoKempner and Dakwar suggested that courts may also judge that the U.S.
113. dominance of the Internet places special legal obligations on it to ensure
114. the protection of users' human rights.
115.  
116. "It's clear that when the United States is conducting surveillance, these
117. decisions and operations start in the United States, the servers are at NSA
118. headquarters, and the capabilities are mainly in the United States," he said.
119. "To argue that they have no human rights obligations overseas is dangerous
120. because it sends a message that there is void in terms of human rights
121. protection outside countries territory. It's going back to the idea that you
122. can create a legal black hole where there is no applicable law." There were
123. signs emerging on Wednesday that America may have been making ground in
124. pressing the Brazilians and Germans to back on one of its toughest
125. provisions. In an effort to address the concerns of the U.S. and its allies,
126. Brazil and Germany agreed to soften the language suggesting that mass
127. surveillance may constitute a violation of human rights. Instead, it simply
128. deep "concern at the negative impact" that extraterritorial surveillance "may
129. have on the exercise of and enjoyment of human rights." The U.S., however,
130. has not yet indicated it would support the revised proposal.
131.  
132. The concession "is regrettable. But it’s not the end of the battle by any
133. means," said Human Rights Watch’s PoKempner. She added that there will soon
134. be another opportunity to corral America's spies: a U.N. discussion on
135. possible human rights violations as a result of extraterritorial surveillance
136. will soon be taken up by the U.N. High commissioner.
137.  
138. Follow me on Twitter: @columlynch.