[bestbits] Re: Call for comment: civil society letter to PCLOB re: human rights impacts of NSA surveillance of 'non-US persons'
parminder
parminder at itforchange.net
Wed Jul 24 13:15:03 EDT 2013
On Wednesday 24 July 2013 08:23 PM, 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.
But so does the US have in place all kinds of higher level principles
that do cover such issues; then why does the letter ask for new legal
frameworks from the US government? As the current frameworks in the US
have been found inadequate, so could it be held true for the global
human rights regime (arguably truer for the latter) - because it is an
undeniable fact - although often selectively denied - that the digital
space produces entirely new realities, which are also unprecedentedly
global in nature.... More on US versus UN frameworks below...
>
> 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.
'Global framework on security? Whoever asked for one..... Are we asking
the US government for new a framework on security, I thought we were
asking for a new framework on privacy protection.... so also for the UN.
Global framework for privacy protection, not for security.
So, pardon my use of ironic language to make my point, apparently we can
ask the US to develop new legal frameworks, and trust that they would
not come up with something worse then they have at present. However, we
cannot at all trust the UN to not come up with legal frameworks worse
than what we have at present, and therefore we should not ever even ask
them for the same thing that we are ready to ask of the US.
To me, it boils down to trusting the US government to run the world more
than we can trust the UN... This is something I am unwilling to do. If
even Snowden did not teach us the right lesson, perhaps nothing ever
would. I am afraid that all this is of a piece with a widespread
tendency to trust US more than the UN with the trusteeship of the global
Internet. I obviously cannot accept that. As I said in my first posting,
it is a well written and argued letter, but the problem with it is not
what it says, but with what it does not.
I am not against focussing a letter on a particular opportunity and end.
However, (1) PCLOB is not the wrong agency to advice the US government
to consider global legal frameworks on privacy protection, especially
now when Snowden disclosures tell us what other countries could also be
doing, including to the US citizens, (2) I did want to have a discussion
here on whether the group considers global frameworks as also a needed
remedy for the problem in focus. I am unable to see how adding a line or
two on global frameworks would throw the letter out of focus.....
parminder
>
> 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
> <mailto: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>
> >>> <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>
> >>>>> (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 <mailto:katitza at eff.org>
> katitza at datos-personales.org <mailto:katitza at datos-personales.org>
> (personal email)
>
> Please support EFF - Working to protect your digital rights and
> freedom
> of speech since 1990
>
>
>
>
> --
> Dr. Anja Kovacs
> The Internet Democracy Project
>
> +91 9899028053 | @anjakovacs
> www.internetdemocracy.in <http://www.internetdemocracy.in/>
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