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

Anriette Esterhuysen anriette at apc.org
Thu Jul 25 07:42:56 EDT 2013

Hi all

I was happy with Anja's reformulation and I share her concerns about the
risks attached to a global agreement. And great work to the main
drafters.. I should have said this before. Just one other thought.

We could, theoretically, keep the letter short and concise, and add as
an addendum a document that raises broader concerns. But hopefully this
will not be necessary.

We should try to remember that we are acting on multiple fronts and
therefore we don't have to fit all our concerns and demands into every
single intervention.

I would like to hear from Katitza whether, in the light of EFF's
position on the PCLOB, whether she thinks this letter is a bad idea? Not
that I think we should not send it, I would just like to have a better
understanding of EFF's position on the Best Bits letter.

And then another thought. Should Best Bits not also draft letters to
other governments on our concerns. Anja mentions India. South Africa
also has VERY problematic legislation around monitoring and interception.

The list goes on.


On 25/07/2013 13:29, Anja Kovacs wrote:
> Just to clarify my position vis-a-vis Parminder's comments:
> In theory I do think that a strong global framework on privacy protections
> could contribute to resolving these issues in a significant manner.
> Unfortunately, in practice I am not sure how feasible this is at present.
> As they are necessarily based on compromise, global agreements tend to
> congeal around the lowest common denominators. At the moment, I am afraid
> these will set the bar too low, not in the least because many of the
> democracies that one would hope would push for higher standards at the
> moment seem to be setting the bar too low domestically, including where
> privacy is concerned. This is true not only of the US but also of, for
> example, India. In these circumstances, I am worried that a global
> agreement will be used first and foremost to cement sovereignty over the
> Internet, rather than to defend the rights of Internet users around the
> world, something I would not consider a gain. My reformulation of
> Anriette's formulation was simply meant to foreground that what we are
> asking for is the implementation of existing human rights, not to stop us
> from creating a debate on this issue. I continue to think, however, that
> the best way countries can flag that the time is genuinely ripe for a
> global framework is by demonstrating a clear commitment to human rights in
> these areas domestically. It is countries that would like to see global
> coordination on a wide range of issues beyond privacy that might in fact
> have the greatest stake in doing so.
> My 2 cents.
> Best,
> Anja
> On 25 July 2013 07:20, michael gurstein <gurstein at gmail.com> wrote:
>> I agree with Parminder that the letter lacks a forward looking element
>> which would deal with the most fundamental issue--the development of an
>> integrated (if to a very limited degree multi-polar) ubiquitous
>> multi-stakeholder--States+private sector+technical community(?))
>> surveillance State. This is  global in nature and will require some sort of
>> global response and working through this in anticipation of the IGF should
>> be I think, our major current task.****
>> ** **
>> However, I think the letter goes a very considerable degree beyond earlier
>> such position statements from major (particularly US) CS actors in
>> recognizing the legitimate concerns/significance of "foreigners" in the
>> current US discussion and on that basis I think it should be supported as
>> amended.****
>> ** **
>> M****
>> ** **
>> *From:* bestbits-request at lists.bestbits.net [mailto:
>> bestbits-request at lists.bestbits.net] *On Behalf Of *parminder
>> *Sent:* Wednesday, July 24, 2013 10:45 PM
>> *Cc:* &lt,bestbits at lists.bestbits.net&gt,
>> *Subject:* Re: [bestbits] Re: Call for comment: civil society letter to
>> PCLOB re: human rights impacts of NSA surveillance of 'non-US persons'****
>> ** **
>> ** **
>> 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> 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****
>> --
>> Dr. Anja Kovacs
>> The Internet Democracy Project
>> +91 9899028053 | @anjakovacs
>> www.internetdemocracy.in****
>> ** **

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

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