Strengthening Global Privacy & Free Expression Rights in the Age of Surveillance

During this summer of surveillance, debate in the United States has focused mainly on the extent to which the NSA’s surveillance programs infringed on the privacy of people inside the U.S. Under the now-notorious PRISM program, the U.S. National Security Agency (NSA) requires U.S.-based companies to disclose the communications of non-U.S. citizens located outside the U.S. In defense of the program, U.S. government officials have stressed that it only targets non-U.S. citizens outside the U.S., but people across the globe who get swept up in the NSA’s programs have privacy rights too. CDT has joined human rights advocates from around the world to highlight this issue to the UN Human Rights Council, the U.S. Congress, and the Privacy and Civil Liberties Oversight Board.

Intuitively, widespread disproportionate poorly targeted surveillance of the global population is a clear burden on the human rights to privacy and free expression. Under traditional human rights law, however, states’ human rights obligations are largely tied to physical control of a territory. States are obligated under international and regional human rights instruments to respect and ensure all human rights of those “within” or “subject to” their jurisdiction; this has primarily encompassed those people within their borders. There is also a reasonably well-developed understanding that when state actors have physical control of a territory, person, or property outside of national borders, that state incurs at least limited human rights obligations for actions it undertakes in those circumstances. These cases have primarily involved situations of military occupation.

National, regional, and international courts differ in precisely how they interpret the notion of “jurisdiction,” but there is widespread acceptance of the general idea that it can be tied to concepts of territoriality and physical control. There is less clarity, however, about the human rights obligations of states acting within their territory but affecting the rights of people outside it – the fact pattern presented by U.S. surveillance inside the U.S. of the Internet-based communications of people located wholly outside the U.S.

It simply cannot be the case that using the Internet, with its complex cross-border data flows, leaves people around the world without a remedy for obvious violations of their human rights. The UN Human Rights Council has emphasized that “the same rights that people have offline must also be protected online.” UN Special Rapporteur on Freedom of Opinion and Expression Frank La Rue has also extensively documented the ways in which states’ surveillance of individuals’ online communications activity can impinge on the rights to freedom of opinion and expression and the right to privacy. International human rights doctrine must be able to meet the clear threats to human rights posed by surveillance in a global communications environment, where geographic borders have much less effect on whether a government can affect a person’s rights.

There are several areas of the human rights doctrine that merit additional exploration:

• How should we conceptualize the right to privacy to give it its full meaning in the context of a globalized communications infrastructure where many countries have the ability to interfere with the privacy rights of people in other countries?
• When a state’s contact with an individual involves the opportunity for control over a person’s communications as they travel over infrastructure within that state’s borders, what arguments and analogies lend support to the proposition that this “jurisdiction” is sufficient to give rise to human rights obligations for the state?
• In particular, what are the obligations of the U.S. when corporations headquartered there have more than half of their customers outside the U.S. and when the distribution of global infrastructure gives the U.S. access to much of the world’s Internet traffic? Plainly, the U.S. has jurisdiction over those corporations, giving it a particular leverage to demand access to the communications of people outside the country that those corporations facilitate.
• As countries collaborate on global surveillance, as the Snowden leaks have revealed is the case for the US and UK governments at the very least, how does that affect the analysis of states’ human rights obligations?

More generally, with regard to digital communications surveillance, where communications frequently cross borders and may be subject to the physical control of more than one country, it is increasingly likely that the acts of a government within its own territory will affect the rights of individuals outside its territory. Currently, the U.S. has a disproportionate window into the global communications network because so much of the Internet’s communications infrastructure routes traffic through the U.S. Human rights advocates and scholars in the U.S. and around the world must continue to urge the U.S. government to understand and respect its human rights obligations to the people – inside the U.S. or not – whose communications it has the capacity to monitor.

Further, it is critical to develop this understanding of states’ human rights obligations throughout the system of international human rights law. Though many of this summer’s most high-profile reports revealed the systematic and essentially unbridled surveillance programs of the U.S., we see similar activities in many of the Western democracies that promote themselves as champions of human rights: the British program that accesses fiber optic cables carrying international communications across British soil, the German program that monitors a communications hub in Frankfurt processing international communications, and programs of other countries as well. The global online communications infrastructure has presented governments around the world with unprecedented capacity to conduct comprehensive and persistent surveillance of the global population, and we must develop a clear understanding of international human rights obligations to act as a strong constraint on this behavior in the future.