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

Katitza Rodriguez katitza at eff.org
Wed Jul 24 10:55:08 EDT 2013

We need to restore the rule of law instead of re-inventing new ones!

On 7/24/13 10:53 AM, Anja Kovacs wrote:
> I also liked Anriette's language on the "development of a global framework
> for protection", though I would suggest we slightly edit it to read "the
> development of a global framework for the implementation of protections" or
> something along those lines. The reason is that we already have a framework
> for protections, ie the human rights framework, but that governments seem
> to be happy to disregard this when it comes to surveillance.
> Until governments worldwide give considerably greater evidence of their
> willingness to make the protection of human rights an integral component of
> their surveillance plans, I do not think that it is appropriate for civil
> society to push for a more comprehensive global framework on security
> issues in general.
> On the issue of what constitutes a "Best Bits statement", the points made
> here are important and we do indeed need greater clarity on this. At the
> same time, it's also important to keep in mind that once statements are
> shared with the wider world, maintaining a distinction between a statement
> supported by all (though even on the Baku one I think we had one abstention
> by the way, and in any case the Baku group was fairly small) and a
> statement shared and promoted through the Best Bits platform might be
> difficult - even if we are careful to make these distinctions, the wider
> world might not.
> Perhaps we should therefore simply go for a model in which ALL statements
> are considered to be in the latter category, and focus our attention on
> coming up with criteria for which type of statements are appropriate (or
> not) for Best Bits instead? I am worried that sending out mixed messages
> will only undermine the effectiveness of the advocacy efforts that go
> through Best Bits, though I'd of course be very happy to hear other
> possible solutions to that conundrum as well.
> Thanks and best,
> Anja
> On 24 July 2013 20:00, Katitza Rodriguez <katitza at eff.org> wrote:
>> Dear all,
>> It would be good to answer the consultation without voicing support for
>> a PCLOB investigation. In EFF, we are of the opinion that the PCLOB
>> isn't the right place for an investigation.
>> PCLOB is weak institution, so EFF concern is that its weaknesses foster
>> low, expectation politics/rhetoric.  EFF want a Church Committee,
>> investigation or at least an existing committee with congress or at
>> least an existing committee with congressional subpoena power to
>> investigate.
>> We have three or four blog posts with arguments about why we need
>> a special investigatory committee, and at the very least extant
>> committees, instead of the PCLOB to investigate.
>> For more information on our asks please check out:
>> https://www.eff.org/deeplinks/2013/06/why-special-congressional-committee-must-be-created-investigate-nsas
>> https://www.eff.org/deeplinks/2013/06/response-nsa-we-need-new-church-commission-and-we-need-it-now
>> On 7/24/13 7:24 AM, Anriette Esterhuysen 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>> 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>
>>>>>>> (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
>>>>>>> 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> |
>>>>>>> @ellanso <https://twitter.com/#%21/ellanso>
>> --
>> Katitza Rodriguez
>> International Rights Director
>> Electronic Frontier Foundation
>> katitza at eff.org
>> katitza at datos-personales.org (personal email)
>> Please support EFF - Working to protect your digital rights and freedom
>> of speech since 1990

Katitza Rodriguez
International Rights Director
Electronic Frontier Foundation
katitza at eff.org
katitza at datos-personales.org (personal email)

Please support EFF - Working to protect your digital rights and freedom
of speech since 1990
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