Cybersecurity & Standards, Government Surveillance
US to Answer for Surveillance Practices on Global Stage
It only happens once every four and a half years, but it’s about to happen this month: the United States will appear before the assembled United Nations Member States to listen and respond to critiques of its human rights record. CDT has been working hard to ensure that the US’ surveillance practices are at the top of the agenda for this process, which is known as the Universal Periodic Review (“UPR”). We hope the official comments aired during the session will help to reinforce strong human rights standards around government surveillance and hold the US to account for its abuses.
The UPR is conducted by the UN Human Rights Council, which is tasked with reviewing every UN Member State’s compliance with its obligations under the human rights treaties it has ratified. The process is mandatory for all countries: the May session, for example, will see the US examined just after Bulgaria and Honduras and shortly before Jamaica and Libya. (The US will be in the hot seat on Monday, May 11 from 9:00 am to 12:30 pm Geneva time, so if you live in North America, set your alarm clock early.)
If a country recommends that the US discontinue any indiscriminate interception of private communications, the Obama administration will be required to take a public position as to whether it accepts this recommendation.
The US has committed to upholding human rights under several treaties, including the International Covenant on Civil and Political Rights (“ICCPR”), the Convention against Torture, and the International Convention on the Elimination of All Forms of Racial Discrimination. The ICCPR, in particular, contains rights to privacy and free expression. During the session, every other UN Member State will have the right to ask the US questions about its respect for the human rights enshrined in these treaties and make recommendations as to what the country should do differently in order to comply with its obligations. The US (represented by its Geneva diplomatic mission and other members of the executive branch) will have the opportunity to respond to these points during the session, and will also need to declare shortly afterward whether it accepts each of the recommendations. In other words, if (for example) a country recommends that the US discontinue any indiscriminate interception of private communications, the Obama administration will be required to take a public position as to whether it accepts this recommendation.
The UPR is a relatively recent creation—it was established via a UN General Assembly resolution in 2006—and it continues to evolve as the UN institutions, the Member States, and NGOs such as CDT, decide how it can best be used. For example, unlike during its first review in 2010, the United States will now be encouraged to submit an official “midterm” follow-up report to the Human Rights Council some time after the review session to explain what the government is doing to implement the human rights recommendations that were made. (We expect that the government will indeed engage in such reporting.)
Meanwhile, for an organization such as CDT, the review of the US represents a chance to remind the public and the global diplomatic community about serious NSA surveillance abuses, and to strengthen the human rights laws and standards that apply to government intrusions on privacy and free speech. The latter opportunity arises because countries frame their recommendations using careful legal language that reflects what they believe human rights law actually requires in practice; these formal articulations can shape the relevant legal tests and ultimately have a long-term impact on what the US and other governments believe they must do in order to fulfill their international commitments.
As part of the UPR process, CDT (along with the ACLU) submitted a joint expert report to the Human Rights Council on five particularly egregious global NSA surveillance programs, including MUSCULAR and QUANTUM, and we also contributed to a second expert report on US surveillance led by our colleagues at the Brennan Center. Additionally, we have been urging the other UN Member States to make surveillance one of their priority issues during the review session.
During the UPR session, we will be on the lookout for whether:
- Countries with which the US has a positive relationship—particularly those that co-sponsored the recent groundbreaking resolution creating a new UN Special Rapporteur on the right to privacy—publicly remind the US government that many of the NSA surveillance programs revealed in the Snowden documents violate human rights and make recommendations as to how those programs should be changed;
- Countries state that the US must comply with its human rights obligations when conducting surveillance outside its own borders—an assertion that would carry significant weight in a major ongoing legal debate;
- Emphasis is placed upon the fact that even the initial interception or acquisition of private data interferes with the rights to privacy and free expression;
- There is a significant embrace of the UN Office of the High Commissioner for Human Rights’ conclusion that any interferences with the right to privacy must be necessary and proportionate in order to comply with human rights (again, such statements by countries would help to strengthen a good global legal standard—one the US currently resists);
- The burden surveillance places on free expression is explicitly highlighted; and
- Countries address specific human rights issues such as meaningful oversight of surveillance programs (for example, by courts or independent bodies) and the need to ensure that anyone who experiences a violation of his/her rights due to surveillance has access to an effective remedy.
The Universal Periodic Review is the world’s biggest stage for highlighting human rights violations and working for clearer, stronger standards to protect the rights and freedoms of individuals everywhere. As the US steps into the spotlight, the world will be watching, and so will CDT.