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

Tamir Israel tisrael at cippic.ca
Wed Jul 24 10:25:06 EDT 2013

Cloud storage is prob worth a mention, as that's where much of the
trouble comes from:
 para 2: "as well as individuals whose communications flow through the
U.S., even if they have no communications with anyone in the U.S." --->
"whose communications flow through *or are stored in* the United States,
even if...."


On 7/24/2013 9:33 AM, Carolina Rossini wrote:
> 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
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.igcaucus.org/pipermail/bestbits/attachments/20130724/eff97071/attachment.htm>

More information about the Bestbits mailing list