[bestbits] Re: Call for comment: civil society letter to PCLOB re: human rights impacts of NSA surveillance of 'non-US persons'
matthew shears
mshears at cdt.org
Wed Jul 24 10:13:41 EDT 2013
Good discussion and important issues. Parminder raises valid points
about the need for us to have a more robust discussion around the need
for global approaches and/or frameworks to protecting rights.
For this particular effort though I would, as suggested by Anriette,
keep the focus on responding to the PCLOB and identifying our concerns
within that framing. I think the additional para as proposed by
Anriette makes sense but I would suggest that we phrase it as "to the
developing global framework" rather than "to the eventual development of
a global framework." There are components of a global framework in place
- for example, the rights (and obligations) that we seek to have
governments uphold. Hopefully the findings and recommendations of the
PCLOB will lend themselves to strengthening/evolving the global framework.
Matthew
On 24/07/2013 09:33, Carolina Rossini wrote:
> I will work on Anriette suggestions.
>
> On Wed, Jul 24, 2013 at 7:36 AM, Gene Kimmelman
> <genekimmelman at gmail.com <mailto:genekimmelman at gmail.com>> wrote:
>
> Thanks Anriette, excellent suggestions!
>
> On Jul 24, 2013, at 7:24 AM, Anriette Esterhuysen
> <anriette at apc.org <mailto: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
>> bewithin 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 <tel: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 esterhuysenanriette 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 <tel:%2B27%2011%20726%201692>
>
>
>
>
> --
> *Carolina Rossini*
> /Project Director, Latin America Resource Center/
> Open Technology Institute
> *New America Foundation*
> //
> http://carolinarossini.net/
> + 1 6176979389
> *carolina.rossini at gmail.com <mailto:carolina.rossini at gmail.com>*
> skype: carolrossini
> @carolinarossini
>
--
Matthew Shears
Director and Representative
Global Internet Policy and Human Rights
Center for Democracy & Technology (CDT)
mshears at cdt.org
+44 (0) 771 247 2987
Skype: mshears
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.igcaucus.org/pipermail/bestbits/attachments/20130724/eaee14aa/attachment.htm>
More information about the Bestbits
mailing list