Deborah Brown and Peter Micek contributed to this post.
This week, Access joined with 65 organizations and individuals from 25 countries to urge the U.S. Privacy and Civil Liberties Oversight Board (PCLOB) to consider the global human rights implications of the U.S. National Security Agency’s (NSA) surveillance programs.
The PCLOB is an independent advisory body charged with providing recommendations to government officials on the impact of counter-terrorism measures on privacy and civil liberties. Although PCLOB has had a rather unimpressive history, the Board announced in the wake of the NSA revelations that it would be accepting comments regarding the U.S. government’s surveillance programs under the PATRIOT Act and the Foreign Intelligence Surveillance Act (FISA).
In the United States, the debate around reforming NSA spying has focused almost exclusively on the domestic aspect of the programs, citing violations of U.S. citizen’s rights under U.S. domestic law. This was especially evident in President Obama’s speech in mid-August, announcing measures to improve transparency and reform NSA surveillance. While Obama recognized the need to “protect the rights of the American people,” when it came to the international impacts of NSA surveillance, he was merely concerned with “how these issues are viewed overseas.”
While the current debate within the U.S. over the legality and constitutionality of the NSA’s surveillance programs is an important one, focusing exclusively on the rights of U.S. citizens has an unfortunate, if unintended, consequence: it sends a message to the rest of the world that the rights of “foreigners” don’t matter.
The PCLOB submission from international civil society groups, organized through the Best Bits coalition, seeks to shift the debate and recognize that international norms assert the universality of rights for all humans, regardless of their nationality or country of residence. As a signatory to this submission, Access encourages PCLOB to produce findings and recommendations that take into consideration the rights of non-U.S. persons and reform U.S. surveillance programs so that they meet basic international norms, including those reflected in the recent report of U.N. Special Rapporteur on Freedom of Opinion and Expression, the International Principles on the Application of Human Rights to Communications Surveillance, and various U.S. commitments, international instruments and law.
As the submission notes, such reforms be consistent with the U.S. government’s frequently stated commitment to ‘freedom online.’ Access also believes this would constitute a necessary fulfillment of existing U.S. commitments within the global human rights framework. Below, we break down how mass government surveillance as currently practiced by the United States is inconsistent with international human rights norms.
The U.S. obligation to protect privacy under international human rights law
Although there are still a number of unanswered questions regarding the scope and details of NSA surveillance, recent revelations suggest that the programs violate international human rights law in a number of respects. In particular, international human rights law recognizes the right to privacy as a fundamental right. The U.S. government is believed to not only be collecting phone metadata, but also the content of online communications of individuals believed to be non-U.S. persons through programs such as PRISM and XKeyscore — a fundamental violation of the right to privacy.
The U.S. has ratified and therefore has the legal obligation to uphold the International Covenant on Civil and Political Rights (ICCPR). Article 17 of the ICCPR declares that “[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home, or correspondence.” Enjoying near universal support—167 of 193 countries have ratified the treaty—the ICCPR has extraterritorial application. The ICCPR also protects the “right to freedom of expression” through Article 19. The rights to privacy and expression are deeply intertwined, as government interference with personal communications is understood to create a chilling effect on expression. Much of the media examining the response to the revelations has noted the correlation between the disclosure of the programs and reports of people changing their privacy habits online.
At the regional level, the Organizations of American States (OAS), to which the U.S. is a State Party, has collectively adopted the American Declaration on the Rights and Duties of Man (ADRDM). The ADRDM contains a number of provisions that protect individuals’ right to privacy, expression, and information, including Article 10, which proclaims that “[e]very person has the right to the inviolability and transmission of his correspondence.” Although the ADRDM is only a declaration, it is still applicable to U.S. law. For example, when the Inter-American Commission on Human Rights, under the Charter of the OAS, heard Statehood Solidarity Committee v. United States, the U.S. was found responsible for violating Articles 2 and 20 of the ADRDM.
The U.S. government is also subject to the Inter-American Democratic Charter (IADC), a declaration adopted by the OAS that protects and promotes democracy. Article 4 of the IADC affirms that there must be “[t]ransparency in government activities,” but the U.S. government’s use of secret courts to authorize spying programs shows a lack of transparency and is potentially in violation of the IADC — in fact, a recent House Judiciary Committee hearing revealed that the NSA spying programs were so secret that a majority of members of Congress were unaware of them.
Privacy under customary international law
In addition to binding international law, governments have obligations under customary international law or norms. Customary international law arises from established state practice, and unlike treaties, which only bind a government once it has accepted the treaty obligations, a government cannot repudiate international customary law. The Universal Declaration of Human Rights of 1948 is widely accepted as customary international law, and includes an important provision on the right to privacy. Article 12 of the UDHR protects against interference with private life, and is the foundation for Article 17 of the ICCPR.
The fact that the right to privacy is considered part of customary international law is important because the U.S. has not ratified most major international human rights treaties. Even some of the treaties it has signed but not yet ratified have privacy provisions. These include the Convention of the Rights of the Child and the American Convention on Human Rights. Still the Vienna Convention on the Law of Treaties prohibits states from defeating the object and purpose of a signed treaty.
Extraterritorial application of human rights law
Although the universality of human rights is widely accepted, the U.S. has consistently argued that the ICCPR does not have extraterritorial application. The extraterritorial application of the ICCPR — whether or not the treaty applies to lands outside of a country’s immediate control — has been debated since the creation of the treaty, however the U.N. Human Rights Committee, the expert body tasked with interpreting the ICCPR and reviewing states party compliance, has sought to settle the matter.
The Committee uses what are known as General Comments to offer clarification on particular articles or issues. General Comment 31, which addresses the treaty’s extraterritorial application, argues that states must extend ICCPR rights “to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.” At Access, we would argue that the personal data being collected and stored by the NSA — including non-citizens’ data — is under ‘effective control’ of the U.S. government, and thus subject to the ICCPR.
In addition, countries that have ratified the First Protocol of the ICCPR (which the U.S. has not done) allow the Human Rights Committee to hear cases from individuals who claim their human rights have been violated. One case that explains the extraterritorial application of the ICCPR is Burgos / Lopez v. Uruguay, where a Uruguayan refugee was detained in Argentina, forcibly returned to his home country, and subsequently tortured. The Committee found in his favor, and against Uruguay, despite the fact the abduction took place abroad. The ICCPR was not intended to allow governments to violate the treaty simply by taking action beyond their borders, the Committee decreed.
The Human Rights Committee is far from the only source suggesting the extraterritorial application of human rights law. The U.S. itself signed and ratified the Charter of the United Nations, which says there must be “universal respect for, and observance of, human rights and fundamental freedoms” by all members of the Charter — including by the U.S.
The Obama administration and its predecessors constantly refer to the universality of human rights — but it’s well past time to match its rhetoric with action. The current practices regarding surveillance of non-U.S. persons demonstrate a fundamental lack of respect for universal human rights, but worse still, they offer a legitimizing precedent for governments around the world to also interpret international law at their whim.
As the joint civil society submission to PCLOB notes, “there is no compelling reason to restrict PCLOB’s focus narrowly to U.S. persons or to people within the U.S. The civil liberties and privacy interests of individuals across the globe are at stake, and there is a desperate need for leadership in holding the U.S. government accountable to its human rights obligations.”