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

[Andrew Puddephatt]

+1 from me
Andrew Puddephatt, Director          Global Partners and Associates
Development House, 56-64 Leonard St, EC2A 4LT, UK
Office 44 (0)207 549 0350
Mobile: +44 (0)771 339 9597
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From: "anriette at apc.org<mailto:anriette at apc.org>" <anriette at apc.org<mailto:anriette at apc.org>>
Organization: Association for Progressive Communications
Reply-To: "anriette at apc.org<mailto:anriette at apc.org>" <anriette at apc.org<mailto:anriette at apc.org>>
Date: Wednesday, 24 July 2013 12:24
To: "parminder at itforchange.net<mailto:parminder at itforchange.net>" <parminder at itforchange.net<mailto:parminder at itforchange.net>>
Cc: "<bestbits at lists. net>" <bestbits at lists.bestbits.net<mailto:bestbits at lists.bestbits.net>>
Subject: Re: [bestbits] Re: Call for comment: civil society letter to PCLOB re: human rights impacts of NSA surveillance of 'non-US persons'

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><mailto:parminder at itforchange.net><mailto: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>






--
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anriette esterhuysen anriette at apc.org<mailto:anriette at apc.org>
executive director, association for progressive communications
www.apc.org<http://www.apc.org>
po box 29755, melville 2109
south africa
tel/fax +27 11 726 1692
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