On Monday, July 20th, the U.S. State Department held a consultation with civil society to discuss the recommendations that the U.S. received during a U.N. review of its human rights record. Access participated remotely — we called in — and asked representatives of the Obama Administration to accept 16 recommendations regarding the right to privacy and unlawful surveillance. The recommendations include conducting a review of U.S. national laws and policies in order to ensure that all surveillance of digital communications is consistent with international human rights obligations.
The background
In May 2015, the U.S. had a second cycle of the Universal Periodic Review (UPR). Forty-seven member states of the UN Human Rights Council advanced an impressive 348 recommendations for the U.S. Soon after, the U.S. responded informally, and Access analyzed and published a response. However, to date the U.S. government has not yet issued a formal response to these recommendations, and on Monday the State Department asked members of civil society to identify the recommendations that they consider a priority.
In addition to the State Department, the consultation included representatives from the U.S. Department of Justice (the chief privacy officer), the U.S. Department of the Defense, and the U.S. Central Intelligence Agency.
What we recommended
We endorsed 16 recommendations — see below for the full list — and asked the U.S. to review any surveillance conducted on non-U.S. persons located abroad, especially interception conducted pursuant to Executive Order 12333 and FAA Section 702, and to identify safeguards and undertake reforms that would protect privacy rights regardless of nationality.
Human Rights Watch and the PEN American Center also raised surveillance concerns. Both organizations called on the U.S. to accept the Brazilian recommendation (see below) to apply the right to privacy to all, regardless of nationality. The representative from PEN additionally referenced Switzerland’s recommendation on the use of Executive Order 12333 by the National Security Agency.
We encouraged the U.S. to use our Universal Implementation Guide for the International Principles on the Application of Human Rights to Communications Surveillance, which offers practical guidance for the implementing recommendations such as the 16 that we endorse.
We hope the U.S. will accept these recommendations and live up to its international human rights commitments. We will continue to monitor and intervene in the follow-up process.
The 16 recommendations
Here is the list of the 16 recommendations we endorse, and the country that made them (you can read an overview and draft copy of recommendations that the U.S. received here, courtesy of the U.S. Human Rights Network):
1.) Eliminate the practice of racial profiling and surveillance by law enforcement officials (Azerbaijan);
2.) Fully respect and protect the right to privacy (Azerbaijan)
3.) Take measures against arbitrary or illegal interferences in private life and correspondence (Costa Rica);
4.) Take adequate and effective steps to guarantee against arbitrary and unlawful acquisition of this data (Kenya);
5.) Review their national laws and policies in order to ensure that all surveillance of digital communications is consistent with its international human rights obligations and is conducted on the basis of a legal framework which is publicly accessible, clear, precise, comprehensive and non-discriminatory (Liechtenstein);
6.) Provide effective legal and procedural guarantees against collection and use by security services of personal information, including abroad (Russian Federation);
7.) Take all necessary measures to ensure an independent and effective oversight by all government branches of the overseas surveillance operations of the National Security Agency, especially those carried out under the Executive Order 12333, and guarantee access to effective judicial and other remedies for people whose right to privacy would have been violated by the surveillance activities of the United States (Switzerland);
8.) Ensure that all surveillance policies and measures comply with international human rights law, particularly the right to privacy, regardless of the nationality or location of those affected, including through the development of effective safeguards against abuses (Brazil);
9.) Cease spying on communications and private data of people in the world (Venezuela, Bolivarian Republic of);
10.) Stop massive surveillance activities both inside and outside its territory to avoid violating the right to privacy of its citizens and those of other countries (China);
11.) Suspend the interception, holding and use of communications, including the surveillance and extraterritorial interception and the scope of the surveillance operations against citizens, institutions and representatives of other countries, which violate the right to privacy, international laws and the principle of State sovereignty recognized in the U.N. Charter (Cuba);
12.) Respect international human rights obligations regarding the right to privacy when intercepting digital communications of individuals, collecting personal data or requiring disclosure of personal data from third parties (Germany);
13.) Strengthen the independent federal-level judicial and legislative oversight of surveillance activities of all digital communications with the aim of ensuring that the right of privacy is fully upheld, especially with regard to individuals outside the territorial borders of the United States (Hungary);
14.) Respect the privacy of individuals outside the U.S. in the context of digital communications and data (Pakistan);
15.) Amend visa application system by removing any requirements that violate the right to privacy (Egypt); and
16.)Improve the legal basis that would ensure respect for the privacy of individuals (Turkey).