Amid surveillance reform debate, U.S. faces criticism of its human rights record

UN Human Rights

The United States sat through its 2nd-ever hearing at the Human Rights Council in Geneva on Monday.

The hearing is part of the Universal Periodic Review (UPR) process, a fairly new mechanism through which every U.N. member state undergoes scrutiny of its human rights record.

The UPR gives everyone a chance to offer a critique, albeit in a polite and diplomatic way. Several countries raised the issue of U.S. surveillance on Monday, as well as noting that the U.S. hasn’t ratified a number of international human rights treaties, nor created a National Human Rights Institution — as more than 100 countries have done — to investigate and remedy human rights abuses. Delegations also pointed to the continued use of the death penalty in the U.S., as well as the country’s poor treatment of immigrants.

The U.S. delegation did not raise the right to privacy in its initial statement, preferring instead to speak about progress on Lesbian, Gay, Bisexual and Transgender (LGBT) rights, torture of prisoners, and racial discrimination in its criminal justice system, among other issues. Only after delegations from a number of countries called attention to its mass surveillance — at home and abroad — did the U.S. make a statement to address the issue.

Below, we give an overview of what was said about U.S. surveillance, provide the U.S. response in full, and our analysis of that response.

Calling out the U.S. on surveillance

Kenya was the first country to mention surveillance, and spent its entire brief speaking time on the right to privacy and digital snooping by the U.S.

Brazil and Germany, countries that have recently co-authored resolutions calling for greater control over government surveillance, also brought up surveillance. Germany in particular recommended that the U.S. 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 3rd parties.” It added that the U.S. should extend a standing invitation to “special procedures mandate holders,” or to independent experts such as the new U.N. Special Rapporteur on the right to privacy (who will be appointed next month).

For its part, Hungary stood up for strengthening the federal judicial and legislative oversight over all digital surveillance activities, but especially with regard to individuals outside the territorial borders of the U.S. (Notably, several U.S. companies have recently recommended that Congress extend to Europeans rights under the U.S. Privacy Act.)

Non-governmental groups also weighed in. In the lead-up to Monday’s hearing, Access joined civil society partners to issue several targeted recommendations [PDF] to the U.S. on privacy and surveillance.

The U.S. responds

In Monday’s hearing, David Bitkower, Deputy Assistant Attorney General in the U.S. Department of Justice, stated:

I’d like to next address surveillance and intelligence gathering, which was raised by several states, including Kenya, Lichtenstein, Romania, and Slovenia. Our intelligence activities are authorized pursuant to a framework based on the rule of law, whereby statutes and other authorities established through democratic institutions govern our activities. U.S. intelligence collection programs and activities are subject to stringent and multi layered oversight mechanisms.

We do not collect signals intelligence with the purpose of suppressing dissent, to afford competitive advantage to the U.S. companies or business sectors commercially, or to disadvantage any person on the basis of categories such as ethnicity, race, gender, sexual orientation or religious. belief. We have extensive and effective oversight to prevent abuse in this area.

For instance, the National Security Agency has an internal oversight and compliance office to ensure that personnel comply with the law, and the United States intelligence community is also required to report to congress on its programs and activities, where there are vigorous. debates on these issues.

Indeed over the past 18 months, the U.S. has undertaken a comprehensive effort to examine and enhance the privacy and civil liberties protections embedded in our signals intelligence activities. As part of this process we have sought and benefited from a broad cross section of views, ideas and recommendations from oversight bodies, advocacy organizations, private companies, the general public, as well as in discussions with our foreign partners.

Our analysis and recommendations

Access disagrees with several of the characterizations in the U.S. response. Even high-ranking members of Congress agree that they do not receive adequate information as to the extent of the surveillance taking place. The National Security Agency Act and other subsequent legislation has created significant exemptions from the transparency requirements in federal open government laws. This secrecy is exacerbated by overbroad invocation of government privileges, like state secrets. There have also been legislative proposals seeking to increase penalties and decrease access to so-determined “classified data.”

It’s true that reviews of surveillance laws have taken place since the revelations in 2013. The Privacy and Civil Liberties Oversight Board has reported on Section 215 of the Patriot Act [PDF] and Section 702 of FISA Amendments Act [PDF], and President Obama commissioned a review group to report on U.S. surveillance [PDF] generally.

We support the findings by several of the auditors, but Congress needs to act to implement their findings. (See our latest post on the USA FREEDOM Act, here, a bill that takes a step toward the comprehensive reform that is necessary.)

Further, government surveillance in the U.S. exhibits a consistent pattern of discrimination against particular vulnerable communities, such as Muslim Americans, that infringes their rights to political and cultural expression. Whether intended or not, this arbitrary and unlawful surveillance by law enforcement clearly discourages dissent and democratic participation, and violates both Constitutional and international human rights law and norms.

The U.S. needs to make progress on its human rights record in number of areas, and it should start by passing reforms that end bulk surveillance now.