As negotiations at the United Nations General Assembly over the right to privacy in the digital age grow heated, Access, together with Amnesty International, the Electronic Frontier Foundation, Human Rights Watch, and Privacy International have written a letter to members of the General Assembly urging them to “take a stand against indiscriminate practices such as mass surveillance, interception, and data collection, both at home and abroad”.
Since a resolution was first introduced by Brazil and Germany a few weeks ago, the “Five Eyes” countries–the name used to reference a joint intelligence sharing agreement of the United States, United Kingdom, Canada, Australia, and New Zealand– have sought to weaken the resolution.
In our joint letter, we called members of the General Assembly to support a resolution that would recognize that:
- Privacy is intrinsically linked to freedom of expression and many other rights;
- The mere existence of domestic legislation is not all that is required to make surveillance lawful under international law;
- Indiscriminate mass surveillance is never legitimate as intrusions on privacy must always be genuinely necessary and proportionate;
- When States conduct extraterritorial surveillance, thereby exerting control over the privacy and rights of persons, they have obligations to respect privacy and related rights beyond the limits of their own borders;
- Privacy is also interfered with even when metadata and other third party communications are intercepted and collected.
The draft resolution emerged Thursday from tough negotiations relatively undamaged. Although the current compromise text avoids naming mass extraterritorial surveillance (of the sort practiced by the U.S.’ NSA and U.K.’s GCHQ) explicitly as a “human rights violation,” the resolution directs the U.N. High Commissioner for Human Rights to issue a report on the protection and promotion of privacy “in the context of domestic and extraterritorial surveillance…including on a mass scale.” That report will be discussed at the Human Rights Council and General Assembly, ensuring that the issue, including extraterritorial aspects of surveillance, stays on the U.N.’s agenda.
A leaked U.S. memo as reported by Colum Lynch reveals that the U.S. rejects that it has any obligation to respect the right to privacy of foreign nationals outside its borders:
As the text currently reads, it suggests that states have international human rights obligations to respect the privacy of foreign nationals outside the U.S., which is not the U.S. view of the [International Covenant on Civil and Political Rights].
The memo also indicates that the U.S. is pushing a legalistic argument to make a distinction between “illegal” and “unlawful”, defending its surveillance programs as prescribed by law, so not “illegal.” According to memo:
Recall that the USG’s collection activities that have been disclosed are lawful collections done in a manner protective of privacy rights, so a paragraph expressing concern about illegal surveillance is one with which we would agree.
Though non-binding, this resolution could be a significant step towards international consensus recognizing the importance of protecting privacy and free expression in the face of technological advancements and encroaching state power. It would be the first major statement by the UN on privacy in 25 years. In 1988 the Human Rights Committee issued General Comment 16, an authoritative interpretation of Article 17 of the ICCPR, which guarantees the right to privacy under international law. Important and dramatic developments in the field of information and communications technology have taken place in the past 25 years, so a new general comment is greatly needed in addition to this resolution. If adopted with strong rights-respecitng language, this resolution could make it more difficult for the U.S. to claim that its mass surveillance programs, including the collection of foreigner’s data, are in line with international human rights standards.
Governments are expected to vote on the resolution early next week at the committee level before it moves onto the full General Assembly in December.