<html><head><meta http-equiv="Content-Type" content="text/html charset=windows-1252"></head><body style="word-wrap: break-word; -webkit-nbsp-mode: space; -webkit-line-break: after-white-space; ">Thanks Anriette, excellent suggestions!<br><div><div>On Jul 24, 2013, at 7:24 AM, Anriette Esterhuysen <<a href="mailto:anriette@apc.org">anriette@apc.org</a>> wrote:</div><br class="Apple-interchange-newline"><blockquote type="cite">
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Dear all<br>
<br>
My view on the letter is to keep it focused on the Call for Comment
by the US Privacy and Civil Liberties Oversight Board regarding the
US government's surveillance programs under the PATRIOT Act and
FISA. I think the letter is already too long.<br>
<br>
The more focused and to the point (and brief) our comments are, the
more likely they will be discussed, forwarded, understood, etc.
etc.. However, I do have a proposal for how to include a reference
global legal frameworks that does not change the basic character and
purpose of the letter as one that addresses an official US body.<br>
<br>
This letter makes three key points:<br>
<br><div style="line-height: 1; margin-top: 0pt; margin-bottom: 0pt; "><span style="font-size: 16px; font-family: Arial; background-color: transparent; font-weight: normal; font-style: normal; font-variant: normal; text-decoration: none; vertical-align: baseline; ">*
Government surveillance must be subject to a strong legal
framework that is transparent, necessary to achieve a legitimate
goal and proportionate to that goal, authorized by a competent
judicial authority, and subject to public oversight. <br>
</span></div><div style="line-height: 1; margin-top: 0pt; margin-bottom: 0pt; "><span style="font-size: 16px; font-family: Arial; background-color: transparent; font-weight: normal; font-style: normal; font-variant: normal; text-decoration: none; vertical-align: baseline; "><br>
</span><span style="font-size: 16px; font-family: Arial; background-color: transparent; font-weight: normal; font-style: normal; font-variant: normal; text-decoration: none; vertical-align: baseline; " id="docs-internal-guid-0af92d96-105c-f673-0958-925534b91194">*Surveillance
of communications conducted under Section 702 must meets
international human rights standards for surveillance.</span></div>
<br>
<span style="font-size: 16px; font-family: Arial; background-color: transparent; font-weight: normal; font-style: normal; font-variant: normal; text-decoration: none; vertical-align: baseline; " id="docs-internal-guid-0af92d96-105a-191a-f58b-11326a40e3e0">* In
the context of online communications, the privacy and liberty
rights of non-U.S. persons outside the U.S. should be</span><span style="font-size: 16px; font-family: Arial; background-color: transparent; font-weight: normal; font-style: normal; font-variant: normal; text-decoration: none; vertical-align: baseline; ">
within the PCLOB’s statutory mandate.<br>
<br>
We could add something along the following lines:<br>
<br>
We believe </span><span style="font-size: 16px; font-family: Arial; background-color: transparent; font-weight: normal; font-style: normal; font-variant: normal; text-decoration: none; vertical-align: baseline; "><span style="font-size: 16px; font-family: Arial; background-color: transparent; font-weight: normal; font-style: normal; font-variant: normal; text-decoration: none; vertical-align: baseline; " id="docs-internal-guid-0af92d96-1063-d16e-fe10-764eb65c5b18">findings
and recommendations developed by the PCLOB that ensure that
protection of rights of US and non US persons in the context of
government surveillance would not only be consistent with the US
government's frequently stated commitment to 'freedom online';
it would also constitute a valuable contribution to the eventual
development of a global framework for such protections. </span><br>
<br>
Btw, this last sentence (quoted below) still uses the term
'Americans'. Please change. I also think that it is best to say
'findings and recommendations' rather than 'recommendations and
findings' as the former is likely to flow from the latter.<br>
</span><br>
"<span style="font-size: 16px; font-family: Arial; background-color: transparent; font-weight: normal; font-style: normal; font-variant: normal; text-decoration: none; vertical-align: baseline; ">We
urge you to make recommendations and findings designed to protect
the human rights not only of Americans, but also of non-U.S.
persons who live outside the United States."</span><br>
<br>
Ciao<br>
<br>
Anriette<br>
<br>
<div class="moz-cite-prefix">On 24/07/2013 09:27, parminder wrote:<br>
</div>
<blockquote cite="mid:51EF81D5.9090802@itforchange.net" type="cite">
<br>
Thanks to Gene and Jeremy for their responses..
<br>
<br>
However, I see no argument here why the letter cannot ask US to
also engage in developing global norms and agreements with regard
to safeguards against invasion of privacy in name of security, and
then adhering to these norms/ agreements. After all, US is a prime
party to be appealed to if we are to move towards such global
norms/ agreements, and it remains my firm belief that this thing
can really be addressed only through global arrangements,
<br>
<br>
(Also, shouldnt US groups and US citizens also be concerned about
invasion of their privacy by non US government agents.:
<br>
<br>
About Jeremy's arugment against seeking 'global legal frameworks'
being that we ourselves are yet to propose anything concrete, does
the proposed letter not ask the US government to develop new
'strong legal frameworks' without actually suggesting their
precise forms.. Why cant we do the same for the global level even
when we yet dont have our concrete institutional proposals ready
(would we ever be :) )... At the domestic level of US gov, the
letter simply asserts the need, at the principles level, of
privacy protection through 'strong legal framework'. We can ask
the same for the global system, at the level of principles....
Unless of course there is a difference of opinion here about the
principle of a global framework itself, in which case it is
precisely my point to discus it openly...
<br>
<br>
parminder
<br>
<br>
<br>
<br>
On Wednesday 24 July 2013 07:34 AM, Gene Kimmelman wrote:
<br>
<blockquote type="cite">I think Parminder raises some very
important points. I'd like to offer a quick observation and
await other input:
<br>
<br>
1. The question about how to refer to previous statements
generated through some subgroup of BestBits is very legitimate;
we may need a more precise description of the letter referred to
and who the signatories were. We still need to discuss at the
next BestBits gathering what our rules of engagement and
governance should be.
<br>
<br>
2. I fully support the idea of initiating a discussion of what
type of global legal framework (or maybe normative framework) we
should be galvanizing around. Maybe even a simple call for the
UN to engage a discussion with all stakeholders fully
represented, to consider how best to enforce human rights
charters and principles, would be a path forward? Maybe others
have a better suggestion, but I wouldn't want the "perfect" to
stand in the way of the "good enough" for the purpose of
registering broad CSO interest in a global discussion and global
policy engagement.
<br>
<br>
3. Whether or not we can all agree on something related to the
global legal framework, I also urge everyone to be pragmatic
about the opportunity to register your views with the US-base
PCLOB. This is of course only one small piece of the legal
struggle, but it is very important from a US NGO standpoint to
expand the US debate beyond US citizens or residents. The US
needs global input to wake it up to its broader obligations.
This may not be enough to change policy, but it is a critical
enhancement to the US-based NGO advocacy that could have some
impact on the US government. So even if this is a flawed,
partial solution, and should be connected to something related
to broader global solution, I believe it could influence US
policymakers.
<br>
On Jul 23, 2013, at 9:44 PM, parminder
<<a class="moz-txt-link-abbreviated" href="mailto:parminder@itforchange.net">parminder@itforchange.net</a>
<a class="moz-txt-link-rfc2396E" href="mailto:parminder@itforchange.net"><mailto:parminder@itforchange.net></a>> wrote:
<br>
<br>
<blockquote type="cite">
<br>
Generally a well written statement. However, it must be judged
not only for what it says but also what it does not... The
statement appeals to a US government agency to protect human
rights of all citizens of the world, especially non US
citizens, which is very well. It call for all security
measures that the US " must be subject to a strong legal
framework" meaning here just a US legal framework.... I am not
convinced that this constitutes an adequate remedy. All
security measures should be subject to a strong global or
international treaty/ legal framework as well.. That alone
will work in an environment where we are all continually
immersed in a (somewhat) globally seamless, or at least
hyper-connected, digital space.
<br>
<br>
So, my specific question is, what stops us, as a global civil
society group, from calling for a global/international legal
framework to ensuring that all security related (and other)
actions, of all states, including the US, are subject to a
clear international regime based on human rights, and any such
regime should have adequate enforcement capabilities.
<br>
<br>
Can we discuss this here...
<br>
<br>
While once in a while we as a global civil society group can
make specific appeals to one government or the other, but I am
unwilling to convert US government to be 'the' key duty bearer
and appellate body for global justice. In doing this is a
deeper politics, and that is my principal objection to this
statement - not to what the statmement says, but what it does
not. However, this problem can easily be addressed if the
statement includes an appeal for global legal frameworks for
the same purpose..... Are the framers of the statement willing
to consider this?
<br>
<br>
Another unconnected point, I often see statements that are
signed by various actors using the BestBits as a facilitating
platform, without them being developed and signed on the
behalf of the BestBits group/ coalition, then after being
signed propositioned as BestBits statements. Recently I saw
such a reference in the press, about a statement that was
never signed by the group as a whole being called as a
BestBits statement. This proposed letter also refers to an
earlier statement being of BestBits coalition whereas it was
never signed by the group as a whole...
<br>
<br>
parminder
<br>
<br>
<br>
<br>
On Wednesday 24 July 2013 06:38 AM, Emma Llanso wrote:
<br>
<blockquote type="cite">Dear all,
<br>
<br>
As you may be aware, the US Privacy and Civil Liberties
Oversight Board is accepting comments commentary regarding
the US government's surveillance programs under the PATRIOT
Act and FISA. (I've included some information about PCLOB
below in case you're not familiar with this entity.) I'd
like to share with you a draft was put together by CDT, with
feedback from a number of folks on this list, that focuses
on the impact these programs have on the human rights of
individuals outside the US:
<a class="moz-txt-link-freetext" href="https://docs.google.com/document/d/17BWIev_DybbML3ObDCORkW83THrNGuJrHlV5sQLdYA0/edit?usp=sharing">https://docs.google.com/document/d/17BWIev_DybbML3ObDCORkW83THrNGuJrHlV5sQLdYA0/edit?usp=sharing</a>
<br>
<br>
We feel that the draft text is at a point where it's ready
to be shared with the broader Best Bits community for
comment. Please share any comments you have on the letter
text with the whole list. (I will be traveling on Wednesday
and so slow to respond to email.) Ideally, we'd like to
have a final draft of the letter text available to circulate
during the day on Thursday, giving us about a week to
solicit sign-on from as broad an array of groups as
possible. This is a very compressed timeframe,
unfortunately, but the deadline for submitting comments is
August 1st, so there is not much flexibility in the
schedule.
<br>
<br>
The Best Bits interim steering committee has agreed to host
the final letter text on the Best Bits website to facilitate
sign-on once we've reached that point.
<br>
<br>
It's worth noting here that while a joint letter with broad
international sign in is one way of getting the US
government to consider the rights of non-US persons, so is
flooding PCLOB with individual letters from international
groups, so please feel free to adapt or build on to this
letter and submit it separately. We intentionally did not
make recommendations to PCLOB so as to garner broad sign on
(more on that below), but individual letters are a good
opportunity to make specific recommendations.
<br>
<br>
*Background on the letter:*
<br>
PCLOB will be preparing a report and is accepting comments
<a class="moz-txt-link-rfc2396E" href="http://www.regulations.gov/#%21documentDetail;D=PCLOB-2013-0005-0001"><http://www.regulations.gov/#%21documentDetail;D=PCLOB-2013-0005-0001></a>
(with no limitations on who can submit comments) until
August 1st. As many of you know, it's been an uphill battle
to get any attention on this critical issue of
extraterritorial impacts of the US surveillance programs.
PCLOB hosted an open hearing on the NSA program earlier in
July, and there was unfortunately only a single reference to
the human rights of people other than US citizens during the
entire hearing. We think this comment process is one of the
better opportunities that groups from outside the US will
have in making their opinions about the US surveillance
activities heard. I'd highly encourage organizations and
individuals to make their own comments into this process, in
addition to considering signing this letter.
<br>
<br>
As a final note, the letter intentionally does not lay out
recommendations more specific than "take into consideration
the human rights of individuals outside the US", for several
reasons. First, it will likely be more difficult for a
broad range of groups to sign onto something urging very
specific legal or policy remedies. Further, I wouldn't want
to see a short, easily agreed set of recommendations (e.g.
focusing on transparency) get interpreted to mean that those
fixes are the only thing the US government needs to do to
remedy the situation. Transparency is an important initial
step, but it's far from the only action needed here (a point
CDT will be emphasizing in our individual comments to
PCLOB). Again, I'd strongly recommend groups file
individual comments as well, particularly if you have
specific recommendations and actions for the Board.
<br>
<br>
<br>
Looking forward to your comments,
<br>
Emma
<br>
<br>
<br>
*PCLOB - WHAT IS IT?* -
<a class="moz-txt-link-freetext" href="https://www.federalregister.gov/agencies/privacy-and-civil-liberties-oversight-board">https://www.federalregister.gov/agencies/privacy-and-civil-liberties-oversight-board</a><br>
<br>
The Privacy and Civil Liberties Oversight Board is an
advisory body to assist the President and other senior
Executive branch officials in ensuring that concerns with
respect to privacy and civil liberties are appropriately
considered in the implementation of all laws, regulations,
and executive branch policies related to war against
terrorism.
<br>
<br>
Recommended by the July 22, 2004, report of the National
Commission on Terrorist Attacks Upon the United States, the
Privacy and Civil Liberties Oversight Board was established
by the Intelligence Reform and Terrorism Prevention Act of
2004. It consists of five members appointed by and serving
at the pleasure of the President. The Board is part of the
White House Office within the Executive Office of the
President and supported by an Executive Director and staff.
<br>
<br>
The Board advises the President and other senior executive
branch officials to ensure that concerns with respect to
privacy and civil liberties are appropriately considered in
the implementation of all laws, regulations, and executive
branch policies related to efforts to protect the Nation
against terrorism. This includes advising on whether
adequate guidelines, supervision, and oversight exist to
protect these important legal rights of all Americans. In
addition, the Board is specifically charged with
responsibility for reviewing the terrorism information
sharing practices of executive branch departments and
agencies to determine whether guidelines designed to
appropriately protect privacy and civil liberties are being
followed, including those issued by the President on
December 16, 2005. In the course of performing these
functions within the executive branch, the Board seeks the
views of private sector, non-profit and academic
institutions, Members of Congress, and all other interested
parties and individuals on these issues.
<br>
<br>
This agency has published 13 articles
<a class="moz-txt-link-rfc2396E" href="https://www.federalregister.gov/articles/search?conditions%5Bagency_ids%5D%5B%5D=438&skip_results=1#advanced"><https://www.federalregister.gov/articles/search?conditions%5Bagency_ids%5D%5B%5D=438&skip_results=1#advanced></a>
since 1994.
<br>
<br>
<br>
-- <br>
Emma J. Llansó
<br>
Policy Counsel
<br>
Center for Democracy & Technology
<br>
1634 I Street NW, Suite 1100
<br>
Washington, DC 20006
<br>
202-407-8818 | @cendemtech
<a class="moz-txt-link-rfc2396E" href="https://twitter.com/#%21/CenDemTech"><https://twitter.com/#%21/CenDemTech></a> | @ellanso
<a class="moz-txt-link-rfc2396E" href="https://twitter.com/#%21/ellanso"><https://twitter.com/#%21/ellanso></a>
<br>
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</blockquote>
<br>
<br>
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<br>
<pre class="moz-signature" cols="72">--
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anriette esterhuysen <a class="moz-txt-link-abbreviated" href="mailto:anriette@apc.org">anriette@apc.org</a>
executive director, association for progressive communications
<a class="moz-txt-link-abbreviated" href="http://www.apc.org/">www.apc.org</a>
po box 29755, melville 2109
south africa
tel/fax +27 11 726 1692</pre>
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