[ExI] Exclusive: Inside America's Plan to Kill Online Privacy Rights Everywhere

[Eugen Leitl]

http://thecable.foreignpolicy.com/posts/2013/11/20/exclusive_inside_americas_plan_to_kill_online_privacy_rights_everywhere

Exclusive: Inside America's Plan to Kill Online Privacy Rights Everywhere

Posted By Colum Lynch   Wednesday, November 20, 2013 - 6:10 PM     Share

The United States and its key intelligence allies are quietly working behind
the scenes to kneecap a mounting movement in the United Nations to promote a
universal human right to online privacy, according to diplomatic sources and
an internal American government document obtained by The Cable.

The diplomatic battle is playing out in an obscure U.N. General Assembly
committee that is considering a proposal by Brazil and Germany to place
constraints on unchecked internet surveillance by the National Security
Agency and other foreign intelligence services. American representatives have
made it clear that they won't tolerate such checks on their global
surveillance network. The stakes are high, particularly in Washington --
which is seeking to contain an international backlash against NSA spying --
and in Brasilia, where Brazilian President Dilma Roussef is personally
involved in monitoring the U.N. negotiations.

The Brazilian and German initiative seeks to apply the right to privacy,
which is enshrined in the International Covenant on Civil and Political
Rights (ICCPR), to online communications. Their proposal, first revealed by
The Cable, affirms a "right to privacy that is not to be subjected to
arbitrary or unlawful interference with their privacy, family, home, or
correspondence." It notes that while public safety may "justify the gathering
and protection of certain sensitive information," nations "must ensure full
compliance" with international human rights laws. A final version the text is
scheduled to be presented to U.N. members on Wednesday evening and the
resolution is expected to be adopted next week.

A draft of the resolution, which was obtained by The Cable, calls on states
to "to respect and protect the right to privacy," asserting that the "same
rights that people have offline must also be protected online, including the
right to privacy." It also requests the U.N. high commissioner for human
rights, Navi Pillay, present the U.N. General Assembly next year with a
report on the protection and promotion of the right to privacy, a provision
that will ensure the issue remains on the front burner.

Publicly, U.S. representatives say they're open to an affirmation of privacy
rights. "The United States takes very seriously our international legal
obligations, including those under the International Covenant on Civil and
Political Rights," Kurtis Cooper, a spokesman for the U.S. mission to the
United Nations, said in an email. "We have been actively and constructively
negotiating to ensure that the resolution promotes human rights and is
consistent with those obligations."

But privately, American diplomats are pushing hard to kill a provision of the
Brazilian and German draft which states that "extraterritorial surveillance"
and mass interception of communications, personal information, and metadata
may constitute a violation of human rights. The United States and its allies,
according to diplomats, outside observers, and documents, contend that the
Covenant on Civil and Political Rights does not apply to foreign espionage.

In recent days, the United States circulated to its allies a confidential
paper highlighting American objectives in the negotiations, "Right to Privacy
in the Digital Age -- U.S. Redlines." It calls for changing the Brazilian and
German text so "that references to privacy rights are referring explicitly to
States' obligations under ICCPR and remove suggestion that such obligations
apply extraterritorially." In other words: America wants to make sure it
preserves the right to spy overseas.

The U.S. paper also calls on governments to promote amendments that would
weaken Brazil's and Germany's contention that some "highly intrusive" acts of
online espionage may constitute a violation of freedom of expression.
Instead, the United States wants to limit the focus to illegal surveillance
-- which the American government claims it never, ever does. Collecting
information on tens of millions of people around the world is perfectly
acceptable, the Obama administration has repeatedly said. It's authorized by
U.S. statute, overseen by Congress, and approved by American courts.

"Recall that the USG's [U.S. government's] collection activities that have
been disclosed are lawful collections done in a manner protective of privacy
rights," the paper states. "So a paragraph expressing concern about illegal
surveillance is one with which we would agree."

The privacy resolution, like most General Assembly decisions, is neither
legally binding nor enforceable by any international court. But international
lawyers say it is important because it creates the basis for an international
consensus -- referred to as "soft law" -- that over time will make it harder
and harder for the United States to argue that its mass collection of
foreigners' data is lawful and in conformity with human rights norms.

"They want to be able to say ‘we haven't broken the law, we're not breaking
the law, and we won't break the law,'" said Dinah PoKempner, the general
counsel for Human Rights Watch, who has been tracking the negotiations. The
United States, she added, wants to be able to maintain that "we have the
freedom to scoop up anything we want through the massive surveillance of
foreigners because we have no legal obligations."

The United States negotiators have been pressing their case behind the
scenes, raising concerns that the assertion of extraterritorial human rights
could constrain America's effort to go after international terrorists. But
Washington has remained relatively muted about their concerns in the U.N.
negotiating sessions. According to one diplomat, "the United States has been
very much in the backseat," leaving it to its allies, Australia, Britain, and
Canada, to take the lead.

There is no extraterritorial obligation on states "to comply with human
rights," explained one diplomat who supports the U.S. position. "The
obligation is on states to uphold the human rights of citizens within their
territory and areas of their jurisdictions."

The position, according to Jamil Dakwar, the director of the American Civil
Liberties Union's Human Rights Program, has little international backing. The
International Court of Justice, the U.N. Human Rights Committee, and the
European Court have all asserted that states do have an obligation to comply
with human rights laws beyond their own borders, he noted. "Governments do
have obligation beyond their territories," said Dakwar, particularly in
situations, like the Guantanamo Bay detention center, where the United States
exercises "effective control" over the lives of the detainees.

Both PoKempner and Dakwar suggested that courts may also judge that the U.S.
dominance of the Internet places special legal obligations on it to ensure
the protection of users' human rights.

"It's clear that when the United States is conducting surveillance, these
decisions and operations start in the United States, the servers are at NSA
headquarters, and the capabilities are mainly in the United States," he said.
"To argue that they have no human rights obligations overseas is dangerous
because it sends a message that there is void in terms of human rights
protection outside countries territory. It's going back to the idea that you
can create a legal black hole where there is no applicable law." There were
signs emerging on Wednesday that America may have been making ground in
pressing the Brazilians and Germans to back on one of its toughest
provisions. In an effort to address the concerns of the U.S. and its allies,
Brazil and Germany agreed to soften the language suggesting that mass
surveillance may constitute a violation of human rights. Instead, it simply
deep "concern at the negative impact" that extraterritorial surveillance "may
have on the exercise of and enjoyment of human rights." The U.S., however,
has not yet indicated it would support the revised proposal.

The concession "is regrettable. But it’s not the end of the battle by any
means," said Human Rights Watch’s PoKempner. She added that there will soon
be another opportunity to corral America's spies: a U.N. discussion on
possible human rights violations as a result of extraterritorial surveillance
will soon be taken up by the U.N. High commissioner.

Follow me on Twitter: @columlynch.