UN Human Rights Body Urges the US to Respect Privacy Rights of People Worldwide

In a report published yesterday, the United Nations Human Rights Committee raised significant concerns about United States surveillance practices and urged the US to respect the privacy rights of all people, including those located outside of US territory. These “Concluding Observations” offer a summary of findings from the Committee’s review of US compliance with obligations under the human rights treaty the International Covenant on Civil and Political Rights (ICCPR). The US review, which took place in Geneva earlier this month, is one of the first times an international human rights body has examined the issue of mass surveillance in the post-Snowden era, and the findings provide an important basis for future work in human rights institutions on the right to privacy in the digital age. Since US law currently has few meaningful protections against spying on anyone outside the United States (unless they are US persons) international human rights institutions play a critical role in building accountability for cross-border surveillance

The US review covered a range of important human rights concerns, among them national security and counter-terror issues. CDT engaged in the review process with a particular focus on NSA surveillance and submitted briefing documents to the Committee in advance of the review. CDT encouraged the Committee to make the following recommendations to the United States government:

• Make the FISC’s significant legal interpretations publicly available with any necessary deletions to protect national security.
• Disclose annually the number of surveillance requests the U.S. government makes under each surveillance authority in FISA, and likewise the number of people whose information was disclosed using that authority.
• Narrow the purposes for which surveillance can be conducted under the PRISM program to protect the privacy and free speech rights of people outside the U.S.
• Limit the collection of information under Section 702 and Section 215 to that which pertains directly to a particular intelligence target.
• Provide additional protection for privacy and free speech by empowering advocates of these rights to participate in the FISA Court proceedings at which significant intelligence surveillance legal questions are resolved.
• The U.S. Congress should bar the NSA from circumventing U.S. law by obtaining from other intelligence agencies information U.S. law bars it from collecting itself.
• Refrain from circumventing U.S. criminal law protections by using FISA authorities to conduct surveillance that is primarily for criminal prosecution purposes.
• Refrain from using information collected under Section 702 or Section 215 to prosecute a person for crimes other than terrorism, espionage and other national security crime.
• Implement PPD-28’s protections for non-U.S. persons by amending the minimization procedures it has adopted in USSID-18 and Department of Defense Regulation 5240.1-R or issue and make public new minimization procedures.
• Limit the scope of the definition of “foreign intelligence information” in EO 12333 to the scope of “foreign intelligence information” in FISA, which does not permit the collection of information that merely concerns the activities of foreign persons.

One major issue at play in the review was the way the US interprets the scope of its obligations under the ICCPR. The US government holds the position that it owes no human rights obligations to people outside of US territory. The issue of extraterritoriality is particularly significant in the context of communications surveillance, because contemporary technology gives the US government unprecedented ability to access and manipulate the digital communications of people outside of its territory, enabling the US to impinge on the human rights of people around the world. While leaked documents reveal long-running debate on the topic within the government, the US delegation held firm to a strictly territorial interpretation during the review. In its response, the Committee countered that US interpretation was contrary to “the Committee’s established jurisprudence, the jurisprudence of the International Court of Justice and state practice.” In a discussion marked by civility and tempered discussion, the Committee’s disappointment was nevertheless apparent.

The review resulted in a number of significant recommendations. The Committee urged the US to take measures to ensure that all surveillance activities inside and outside the United States are legal, necessary, proportionate, and in compliance with human rights obligations, including the right to privacy. The Committee also asked the US to make all relevant laws public, narrowly tailor the scope of surveillance activities, and provide effective oversight and safeguards against abuse. These recommendations are an important foundation for the Committee’s articulation of appropriate, rights-respecting surveillance frameworks under human rights law.

The Concluding Observations have been finalized but the discussion continues. The US delegation will need to provide a progress report on surveillance reforms within the next year. The President’s decision to end bulk collection of records of telephone calls to, from, and within the US is unlikely to satisfy the Committee because it does little to protect the rights of people outside the US. Moreover, the Committee acknowledged Presidential Policy Directive 28, but indicated that policy reform is only meaningful if the implementation results in rights-respecting practice. The US must take significant steps to protect the rights of people outside the US in order to show progress.

Between now and the US progress report in March 2015, the United Nations High Commissioner on Human Rights will deliver a report on the right to privacy in the digital age and the United States will undergo Universal Periodic Review in the Human Rights Council. Through these and other processes, it will be important for advocates, companies, and governments to remain consistently engaged and build on the Committee’s momentum towards more robust jurisprudence, accountability, and reform.