Calling mass electronic surveillance a “dangerous habit,” the United Nations’ top human rights official issued a report today suggesting that the United States’ foreign surveillance program may be illegally discriminatory. The report, “The Right to Privacy in the Digital Age,” also strongly questioned whether courts that give secret rulings about surveillance, such as the US’ Foreign Intelligence Surveillance Court, comply with international laws on privacy rights.
“Secret government surveillance, especially mass surveillance, is a serious human rights issue worldwide. The UN’s report could not be more frank in naming and criticizing many of today’s most persistent and intrusive surveillance practices– including those of the US government,” Sarah St.Vincent, a human rights lawyer with the Center for Democracy & Technology (CDT).
“Where the US is concerned, the High Commissioner for Human Rights has said, explicitly and implicitly, that many aspects of our government’s secret surveillance programs are very likely illegal. This ought to be a wake-up call for anyone who believes that our government is adequately protecting our fundamental privacy rights, and it ought to spur major legal reforms,” St.Vincent added.
CDT has been urging the US and other governments to uphold the human rights of non-citizens in their surveillance practices. In the US, this would require reform to Section 702 of the FISA Amendments Act, which CDT has strongly supported.
The UN General Assembly asked the UN High Commissioner for Human Rights to write the report, which is global in scope. The report draws heavily on the revelations about the surveillance practices of the US National Security Agency (NSA).
The key findings of the report:
- Confirm that “mass” or “bulk” surveillance programs are illegal under international human-rights law. This is because they involve arbitrary targeting rather than targeting focused on a specific, individual risk of terrorism or other criminal activity.
- Strongly suggest that the US’ foreign surveillance regime is unlawfully discriminatory. Citing the US’ Foreign Intelligence Surveillance Act, the High Commissioner noted that countries such as the US are providing fewer legal protections to foreigners outside of US territory than to US citizens and people within US territory. In this context, she emphasized that international human-rights law does not permit countries to discriminate (including on the basis of nationality) where privacy rights are concerned.
- Find that courts that issue secret rulings about surveillance laws cannot adequately guarantee respect for privacy rights. This is extremely important in the US context, where rulings of the Foreign Intelligence Surveillance Court are kept classified and hidden from the public.
- Reject the distinction between content and metadata. The US government uses Section 215 of the USA PATRIOT Act as a legal basis for collecting basic information (known as “metadata”) about all Americans’ telephone communications. Legally, the government seeks to draw a distinction between metadata (for example, the date and time of a phone call, and the identities of the callers) and the content of a conversation. The High Commissioner’s report states firmly that individuals have exactly the same privacy rights when it comes to both content and metadata.
- Question the legality of forcing companies such as Google and Verizon to store customers’ metadata. The High Commissioner writes that it is probably illegal under international human-rights law for governments to force telecommunications companies and Internet service providers to retain their customers’ metadata “just in case” it is needed for government purposes. She also encourages companies to resist unlawful government demands for data as much as possible.
A report co-authored by CDT’s Vice President of Policy Jim Dempsey, “Systematic Government Access to Personal Data,” was cited by the UN High Commissioner in her report.
CDT experts are available to comment on the global implications of the report, as well as what they mean for the US government surveillance programs.