[bestbits] Re: Call for comment: civil society letter to PCLOB re: human rights impacts of NSA surveillance of 'non-US persons'

Wed Jul 24 09:33:27 EDT 2013

I will work on Anriette suggestions.

On Wed, Jul 24, 2013 at 7:36 AM, Gene Kimmelman <genekimmelman at gmail.com>wrote:

> Thanks Anriette, excellent suggestions!
>
> On Jul 24, 2013, at 7:24 AM, Anriette Esterhuysen <anriette at apc.org>
> wrote:
>
>  Dear all
>
> 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.
>
> 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.
>
> This letter makes three key points:
>
> * 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.
>
> *Surveillance of communications conducted under Section 702 must meets
> international human rights standards for surveillance.
>
> * In the context of online communications, the privacy and liberty rights
> of non-U.S. persons outside the U.S. should be within the PCLOB’s
> statutory mandate.
>
> We could add something along the following lines:
>
> We believe 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.
>
> 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.
>
> "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."
>
> Ciao
>
> Anriette
>
> On 24/07/2013 09:27, parminder wrote:
>
>
> Thanks to Gene and Jeremy for their responses..
>
> 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,
>
> (Also, shouldnt US groups and US citizens also be concerned about invasion
> of their privacy by non US government agents.:
>
> 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...
>
> parminder
>
>
>
> On Wednesday 24 July 2013 07:34 AM, Gene Kimmelman wrote:
>
> I think Parminder raises some very important points.  I'd like to offer a
> quick observation and await other input:
>
> 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.
>
> 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.
>
> 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.
> On Jul 23, 2013, at 9:44 PM, parminder <parminder at itforchange.net
> <mailto:parminder at itforchange.net> <parminder at itforchange.net>> wrote:
>
>
> 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.
>
> 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.
>
> Can we discuss this here...
>
> 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?
>
> 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...
>
> parminder
>
>
>
> On Wednesday 24 July 2013 06:38 AM, Emma Llanso wrote:
>
> Dear all,
>
> 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:
> https://docs.google.com/document/d/17BWIev_DybbML3ObDCORkW83THrNGuJrHlV5sQLdYA0/edit?usp=sharing
>
> 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.
>
> 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.
>
> 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.
>
> *Background on the letter:*
> PCLOB will be preparing a report and is accepting comments
> <http://www.regulations.gov/#%21documentDetail;D=PCLOB-2013-0005-0001><http://www.regulations.gov/#%21documentDetail;D=PCLOB-2013-0005-0001>(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.
>
> 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.
>
>
> Looking forward to your comments,
> Emma
>
>
> *PCLOB - WHAT IS IT?* -
> https://www.federalregister.gov/agencies/privacy-and-civil-liberties-oversight-board
>
> 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.
>
> 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.
>
> 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.
>
> This agency has published 13 articles
> <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>since 1994.
>
>
> --
> Emma J. Llansó
> Policy Counsel
> Center for Democracy & Technology
> 1634 I Street NW, Suite 1100
> Washington, DC 20006
> 202-407-8818 | @cendemtech <https://twitter.com/#%21/CenDemTech><https://twitter.com/#%21/CenDemTech>| @ellanso
> <https://twitter.com/#%21/ellanso> <https://twitter.com/#%21/ellanso>
>
>
>
>
>
>
> --
> ------------------------------------------------------
> anriette esterhuysen anriette at apc.org
> executive director, association for progressive communicationswww.apc.org
> po box 29755, melville 2109
> south africa
> tel/fax +27 11 726 1692
>
>
>

-- 
*Carolina Rossini*
*Project Director, Latin America Resource Center*
Open Technology Institute
*New America Foundation*
//
http://carolinarossini.net/
+ 1 6176979389
*carolina.rossini at gmail.com*
skype: carolrossini
@carolinarossini
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.igcaucus.org/pipermail/bestbits/attachments/20130724/88ff2fb8/attachment.htm>