[bestbits] International civil society letter to Congress to follow up from HRC statement

Wed Jun 12 15:14:54 EDT 2013

I like the language proposed below, and I do think solves the debate on
this.

Joana, how you feel about it?
On Wed, Jun 12, 2013 at 2:25 PM, Kevin Bankston <kbankston at cdt.org> wrote:

> Hey everyone:
>
> So the current sentence at the end is this:
>
> "We further call on the United States Congress to protect the
> whistleblowers involved in this case and support their efforts to combat identifiable
> mass violations of the fundamental human rights of American and foreign
> citizens."[9]
>
> Would people be comfortable with:
> "We further call on the United States Congress to establish stronger
> protections for whistleblowers in order to better ensure that the public is
> adequately informed about abuses of power that violate the fundamental
> human rights of Americans and foreign citizens."
>
> I think that a call to immunize Snowden is both politically and more to
> the point legally implausible--and also I think is too narrow to serve our
> purpose, since it's just him.
>
> To the extent people would like to say something more expansive about
> whistleblowing, I think perhaps doing a separate letter as Anja suggests
> might be appropriate.
> ____________________________________
> Kevin S. Bankston
> Senior Counsel and Free Expression Director
> Center for Democracy & Technology
> 1634 I St NW, Suite 1100
> Washington, DC 20006
> 202.407.8834 direct
> 202.637.0968 fax
> kbankston at cdt.org
>
> Follow CDT on Twitter at @cendemtech
>
> On Jun 12, 2013, at 1:32 PM, Cynthia Wong <wongc at hrw.org> wrote:
>
> FYI, OSIJ has released their principles on national security and FOI,
> which does discuss protections for whistleblowers:
> http://www.opensocietyfoundations.org/briefing-papers/understanding-tshwane-principles
> ****
>
> I’m not an expert on US law in this area, but there are protections for
> government employee whistleblowers in some contexts (fraud, abuse).
> However, there may be broad exemptions to those protections in the
> intelligence/national security context?****
>
> *From:* bestbits-request at lists.bestbits.net [mailto:bestbits-
> request at lists.bestbits.net] *On Behalf Of *Ginger Paque
> *Sent:* Wednesday, June 12, 2013 1:07 PM
> *To:* Anriette Esterhuysen
> *Cc:* bestbits at lists.bestbits.net&gt
> *Subject:* Re: [bestbits] International civil society letter to Congress
> to follow up from HRC statement****
> ** **
>
> There are some statutes that protect whistleblowers in some cases, but
> this is subject to interpretation and the scope of the particular
> whistleblower statute you are looking at. The lawyer I asked said it is
> further complicated by 'whistleblowing' against the nation (USA) and
> possible allegations of treason and terrorism (e.g. Bradley
> Manning/Wikileaks)****
>
> Most whistleblower protections seem to address employee whistleblowing or
> corporate fraud.****
>
> Do other countries besides the USA offer protections?****
> gp****
>
> ****
> Ginger (Virginia) Paque
> IG Programmes, DiploFoundation
>
> *The latest from Diplo...* *Upcoming online courses in Internet
> governance: Master in Contemporary Diplomacy with Internet Governance
> specialisation, Critical Internet Resources and Infrastructure, ICT Policy
> and Strategic Planning, and Privacy and Personal Data Protection. Read more
> and apply at http://www.diplomacy.edu/courses*****
>
>
> ** **
> On 12 June 2013 11:47, Anriette Esterhuysen <anriette at apc.org> wrote:****
>
> Replying only to BestBits... the multiple messages are driving me round
> the bend.
>
> I support Joana on this, but understand the strategic considerations to.
>
> Is there any protection for whistleblowers in the US we can make
> reference to in this last paragraph? So that we can say that 'such
> protection should apply to whistleblowers in this case'?
>
> anriette
>
>
> On 12/06/2013 18:22, Joana Varon wrote:
> > I'm ok if we take the paragraph that Kevin and Carol mentioned out and
> > leave the last part of the final paragraph:
> >
> > "We further call on the United States Congress to protect the
> > whistleblowers involved in this case and support their efforts to combat
> > these kinds of mass violations of the fundamental human rights of
> American
> > and foreign citizens.[9]"
> >
> >
> > On Wed, Jun 12, 2013 at 5:13 PM, Joana Varon <joana at varonferraz.com>
> wrote:
> >
> >> "So we need others to protect him from US.."
> >>
> >> then, as International community, we need the US to know we support his
> >> protection, isnt it?
> >>
> >>
> >> On Wed, Jun 12, 2013 at 5:12 PM, Carolina Rossini <
> >> carolina.rossini at gmail.com> wrote:
> >>
> >>> Joana, I agree with Kevin on this. We need action of the international
> >>> community to protect whistleblowers when they break a law in a certain
> >>> country when such action in favor of a bigger common good - and
> actually
> >>> public interest.
> >>> So we need others to protect him from US...I do not believe anything
> else
> >>> would work in this case.
> >>>
> >>> On Wed, Jun 12, 2013 at 12:07 PM, Kevin Bankston <kbankston at cdt.org
> >wrote:
> >>>
> >>>> Understood.  But the audience has changed.  There it was the HRC,
> where
> >>>> your point might have purchase.  But if we are here addressing US
> >>>> policymakers, and we are, that's a context where even those who are
> >>>> staunchly on our side on the substance have had to condemn what
> Snowden did
> >>>> as a clear violation of the law.
> >>>>
> >>>>    ____________________________________
> >>>> Kevin S. Bankston
> >>>> Senior Counsel and Free Expression Director
> >>>> Center for Democracy & Technology
> >>>> 1634 I St NW, Suite 1100
> >>>> Washington, DC 20006
> >>>> 202.407.8834 direct
> >>>> 202.637.0968 fax
> >>>> kbankston at cdt.org
> >>>>
> >>>> Follow CDT on Twitter at @cendemtech
> >>>>
> >>>> On Jun 12, 2013, at 12:02 PM, Joana Varon <joana at varonferraz.com>
> wrote:
> >>>>
> >>>> As I've mentioned in the document:
> >>>>
> >>>> I believe it is very important to express our concerns about the
> future
> >>>> of the whistleblowers in every single statement we make... I mean,
> the guy
> >>>> is in huge trouble.. all the efforts are welcome and protecting him
> is also
> >>>> part of our main points. That was expressed in a paragraph on our
> Statement
> >>>> to HRC and there were a few organizations that signed our statement to
> >>>> HCR particularly because we have mentioned this point.
> >>>>
> >>>>
> >>>> On Wed, Jun 12, 2013 at 4:59 PM, Carolina Rossini <
> >>>> carolina.rossini at gmail.com> wrote:
> >>>>
> >>>>> + 1 on Kevin's comments
> >>>>>
> >>>>>
> >>>>> On Wed, Jun 12, 2013 at 11:58 AM, Kevin Bankston <kbankston at cdt.org
> >wrote:
> >>>>>
> >>>>>> Sorry, used the old best bits list address, now using new one...
> >>>>>>
> >>>>>> Kevin
> >>>>>>
> >>>>>> On Jun 12, 2013, at 11:53 AM, Kevin Bankston <kbankston at cdt.org>
> >>>>>> wrote:
> >>>>>>
> >>>>>> I'm not sure how bestbits fell out of this thread--I thought
> bestbists
> >>>>>> was going to be the main channel for this discussion--so adding
> that list
> >>>>>> back into cc.
> >>>>>>
> >>>>>> In addition to Carolina, I've also made some small tweaks and one
> big
> >>>>>> comment.
> >>>>>>
> >>>>>> The tweaks:
> >>>>>>
> >>>>>> 1) Changed "Some US-based Internet companies with global reach also
> >>>>>> seem to be *complicit* in these practices" to "participating".  I am
> >>>>>> all for calling out "complicity" in cases like, e.g., AT&T's
> cooperation
> >>>>>> with the Bush-era program that operated without court approval (for
> the
> >>>>>> record, I'm one of the attorneys who brought cases against AT&T and
> the NSA
> >>>>>> over that program, while I was at EFF).  But as far as we know now
> the
> >>>>>> companies participating currently are doing so under secret *order*
> of the
> >>>>>> FISA court and even if they had attempted to challenge those orders
> we
> >>>>>> would never know.  So I'm less willing to tar with the "complicity"
> brush.
> >>>>>>
> >>>>>> 2) Changed "Involved or affected companies *must* publish
> statistics"
> >>>>>> to "must *be allowed to*" publish statistics.  Right now they are
> forbidden
> >>>>>> by law from doing so.  So we should be asking USG to allow them to
> do so.
> >>>>>>
> >>>>>> The one big comment, seconding Carolina's: I think that the
> paragraph
> >>>>>> focusing on whistleblowing is a politically dangerous distraction
> from the
> >>>>>> main point.  We had the same discussion in the
> stopwathing.uscoalition--many people wanted to focus on Snowden--but after
> a lot of
> >>>>>> debate it was agreed that doing so would actually detract from what
> he is
> >>>>>> trying to accomplish.  I think the same is true here.
> >>>>>>
> >>>>>> Thanks,
> >>>>>> K
> >>>>>>
> >>>>>> PS CDT will have a blog post up shortly praising the HRC statement
> and
> >>>>>> the Larue report and highlighting for a US audience the global
> human rights
> >>>>>> impact of this issue.
> >>>>>>     ____________________________________
> >>>>>> Kevin S. Bankston
> >>>>>> Senior Counsel and Free Expression Director
> >>>>>> Center for Democracy & Technology
> >>>>>> 1634 I St NW, Suite 1100
> >>>>>> Washington, DC 20006
> >>>>>> 202.407.8834 direct
> >>>>>> 202.637.0968 fax
> >>>>>> kbankston at cdt.org
> >>>>>>
> >>>>>> Follow CDT on Twitter at @cendemtech
> >>>>>>
> >>>>>> On Jun 12, 2013, at 11:34 AM, Carolina Rossini <
> >>>>>> carolina.rossini at gmail.com> wrote:
> >>>>>>
> >>>>>> Hi all
> >>>>>>
> >>>>>> I just talked to Gene, and we have some new inputs. Edits on the
> >>>>>> letter.
> >>>>>>
> >>>>>> C
> >>>>>>
> >>>>>>
> >>>>>> On Wed, Jun 12, 2013 at 11:16 AM, Joana Varon <
> joana at varonferraz.com>wrote:
> >>>>>>
> >>>>>>> Hi folks,
> >>>>>>> Great job! I'm adding some brackets.. if I might.
> >>>>>>> Shall we be delivering this in Tunis, next week? During the Freedom
> >>>>>>> Online Coalition meeting.
> >>>>>>> best
> >>>>>>> joana
> >>>>>>>
> >>>>>>>
> >>>>>>> On Wed, Jun 12, 2013 at 3:44 PM, Carolina Rossini <
> >>>>>>> carolina.rossini at gmail.com> wrote:
> >>>>>>>
> >>>>>>>> Kevin,
> >>>>>>>>
> >>>>>>>> Thank you for your inputs. However, do you think there is space to
> >>>>>>>> say - besides reforming such law - there was a overreaching of
> authority ?
> >>>>>>>>
> >>>>>>>> C
> >>>>>>>>
> >>>>>>>>
> >>>>>>>> On Wed, Jun 12, 2013 at 10:40 AM, Kevin Bankston <
> kbankston at cdt.org>wrote:
> >>>>>>>>
> >>>>>>>>> By then we might also have responses to Andrew Puddephatt's
> >>>>>>>>> questions.
> >>>>>>>>>
> >>>>>>>>>
> >>>>>>>>> I'm not sure how best to answer Andrew's questions; FISA is a
> >>>>>>>>> complex law.  And to be clear, Section 215 of the PATRIOT Act
> was an
> >>>>>>>>> amendment to FISA's provision for court orders for records; not
> a separate
> >>>>>>>>> law.  And the state secrets privilege is common law; there is no
> statute
> >>>>>>>>> for it.  But I'll do my best!
> >>>>>>>>>
> >>>>>>>>> To read Andrew's question as narrowly as possible so that I can
> >>>>>>>>> give a quick answer:  In the context of foreign intelligence and
> terrorism
> >>>>>>>>> investigations, FISA regulates surveillance conducted inside the
> United
> >>>>>>>>> States, and acquisition of records from companies inside the
> United
> >>>>>>>>> States, and surveillance outside of the United States to the
> extent it
> >>>>>>>>> implicates United States person (i.e., citizens and naturalized
> permanent
> >>>>>>>>> residents); there is also the National Security Letter authority
> which is
> >>>>>>>>> an authority for the FBI to obtain records without going through
> the FISA
> >>>>>>>>> Court.
> >>>>>>>>>
> >>>>>>>>> These authorities directly implicate the privacy of non-Americans
> >>>>>>>>> to the extent that 1) non-Americans may reside in the US, 2)
> non-Americans
> >>>>>>>>> communications will transit or be stored in facilities in the
> US, 3)
> >>>>>>>>> records about non-Americans will be stored by companies in the
> US.
> >>>>>>>>>  Finally, it also implicates the privacy of non-Americans to the
> extent
> >>>>>>>>> that it does not at all regulate USG surveillance of
> non-Americans outside
> >>>>>>>>> of America.
> >>>>>>>>>
> >>>>>>>>> FISA is at 18 USC 1801 et seq, in Chapter 36 of our US Code:
> >>>>>>>>> http://www.law.cornell.edu/uscode/text/50/chapter-36
> >>>>>>>>>
> >>>>>>>>> In most relevant part, Subchapter I deals with individual
> wiretaps
> >>>>>>>>> ("electronic surveillance"), II with secret physical searches,
> III with pen
> >>>>>>>>> registers and trap and trace devices (i.e. surveillance of
> metadata), IV
> >>>>>>>>> with records demands (now referred to as PATRIOT 215 orders
> since it was
> >>>>>>>>> significantly amended by that section of PATRIOT).  Meanwhile,
> Subchapter
> >>>>>>>>> VI--added by the FISA Amendments Act (FAA) in 2008--provided the
> new and
> >>>>>>>>> seriously problematic authority to obtain year long orders
> authorizing
> >>>>>>>>> "programs" of non-individualized surveillance of communications
> where at
> >>>>>>>>> least one party to the communication is outside of the country,
> while also
> >>>>>>>>> allowing without any court authorization the interception of any
> >>>>>>>>> foreign-to-foreign communications transiting the US; that is the
> authority
> >>>>>>>>> under which PRISM is being used, as far as we best understand it.
> >>>>>>>>>
> >>>>>>>>> Therefore and to be absolutely clear: amendment to these
> laws--and
> >>>>>>>>> especially a narrowing of the FAA--would SUBSTANTIALLY impact
> the privacy
> >>>>>>>>> of every non-American who uses modern communications networks
> and services,
> >>>>>>>>> especially those with facilities in the US.  And the assistance
> of
> >>>>>>>>> international civil society will be critical in any effort to
> accomplish
> >>>>>>>>> such amendments.  So--thank you all for what you've been doing!
> >>>>>>>>>
> >>>>>>>>> Best,
> >>>>>>>>> Kevin
> >>>>>>>>>    ____________________________________
> >>>>>>>>> Kevin S. Bankston
> >>>>>>>>> Senior Counsel and Free Expression Director
> >>>>>>>>> Center for Democracy & Technology
> >>>>>>>>> 1634 I St NW, Suite 1100
> >>>>>>>>> Washington, DC 20006
> >>>>>>>>> 202.407.8834 direct
> >>>>>>>>> 202.637.0968 fax
> >>>>>>>>> kbankston at cdt.org
> >>>>>>>>>
> >>>>>>>>> Follow CDT on Twitter at @cendemtech
> >>>>>>>>>
> >>>>>>>>> On Jun 12, 2013, at 10:02 AM, Anriette Esterhuysen <
> >>>>>>>>> anriette at apc.org> wrote:
> >>>>>>>>>
> >>>>>>>>>  We need a clean copy.. but I am afraid I can't work on it today.
> >>>>>>>>>
> >>>>>>>>> But thanks MIke and others who have given input.  I would be
> happy
> >>>>>>>>> to let Joy and Jeremy clean up and give us a version to send
> tomorrow or
> >>>>>>>>> Friday.
> >>>>>>>>>
> >>>>>>>>> By then we might also have responses to Andrew Puddephatt's
> >>>>>>>>> questions.
> >>>>>>>>>
> >>>>>>>>> Anriette
> >>>>>>>>>
> >>>>>>>>>
> >>>>>>>>> On 12/06/2013 15:03, michael gurstein wrote:
> >>>>>>>>>> I`ve commented as well and also around all day...
> >>>>>>>>>>
> >>>>>>>>>> M
> >>>>>>>>>>
> >>>>>>>>>> -----Original Message-----
> >>>>>>>>>> From: webwewant at googlegroups.com [
> >>>>>>>>> mailto:webwewant at googlegroups.com <webwewant at googlegroups.com>]
> On
> >>>>>>>>>> Behalf Of Anriette Esterhuysen
> >>>>>>>>>> Sent: Wednesday, June 12, 2013 4:28 AM
> >>>>>>>>>> Cc: webwewant at googlegroups.com;
> >>>>>>>>> irp at lists.internetrightsandprinciples.org
> >>>>>>>>>> Subject: Re: [bestbits] International civil society letter to
> >>>>>>>>> Congress to
> >>>>>>>>>> follow up from HRC statement
> >>>>>>>>>>
> >>>>>>>>>>
> >>>>>>>>> Great work. Thanks Joy and Jeremy . I have made some comments.
> Will
> >>>>>>>>> be
> >>>>>>>>> around all day if needed.
> >>>>>>>>>
> >>>>>>>>> Anriette
> >>>>>>>>>
> >>>>>>>>> On 12/06/2013 06:01, Jeremy Malcolm wrote:
> >>>>>>>>>> This follows on from a telephone call organised by the Web
> >>>>>>>>> Foundation
> >>>>>>>>>> yesterday, in which APC was asked to coordinate a civil society
> >>>>>>>>> letter
> >>>>>>>>>> to the US government from international organisations.  That
> >>>>>>>>> letter
> >>>>>>>>>> would follow on from our joint statement to the Human Rights
> >>>>>>>>> Council,
> >>>>>>>>>> and we would invite Human Rights Watch and Privacy International
> >>>>>>>>> to
> >>>>>>>>>> participate in drafting.  APC agreed to do this and suggested
> >>>>>>>>>> continuing to use Best Bits as the coordinating coalition.
> >>>>>>>>>> Here is the first rough draft of the text that Joy from APC and
> I
> >>>>>>>>> have
> >>>>>>>>>> begun to put together, which awaits your comments and
> >>>>>>>>> improvements:
> >>>>>>>>>
> >>>>>>>>>> http://igcaucus.org:9001/p/your_name_here (sorry for the dumb
> >>>>>>>>> URL)
> >>>>>>>>>
> >>>>>>>>>> Although I'm cc'ing the IRP and Web We Want lists, to avoid
> >>>>>>>>>> fragmentation of discussions on the text like happened
> >>>>>>>>> inadvertently
> >>>>>>>>>> last time, can I suggest, if nobody objects, that we centralise
> on
> >>>>>>>>>> this list, and that if you are not a member you can join at
> >>>>>>>>>> http://lists.bestbits.net/wws/info/bestbits.  To bring in
> >>>>>>>>> others, you
> >>>>>>>>>> can point them towards this list too.
> >>>>>>>>>
> >>>>>>>>>  >
> >>>>>>>>>> --
> >>>>>>>>>> You received this message because you are subscribed to the
> >>>>>>>>> Google Groups
> >>>>>>>>>> "Web We Want working group" group.
> >>>>>>>>>> To unsubscribe from this group and stop receiving emails from
> it,
> >>>>>>>>> send an
> >>>>>>>>>> email to webwewant+unsubscribe at googlegroups.com.
> >>>>>>>>>> For more options, visit
> https://groups.google.com/groups/opt_out.
> >>>>>>>>>>
> >>>>>>>>>>
> >>>>>>>>>>
> >>>>>>>>> --
> >>>>>>>>> ------------------------------------------------------
> >>>>>>>>> anriette esterhuysen anriette at apc.org
> >>>>>>>>> executive director, association for progressive communications
> >>>>>>>>> www.apc.org
> >>>>>>>>> po box 29755, melville 2109
> >>>>>>>>> south africa
> >>>>>>>>> tel/fax +27 11 726 1692
> >>>>>>>>>
> >>>>>>>>>
> >>>>>>>>> --
> >>>>>>>>> You received this message because you are subscribed to the
> Google
> >>>>>>>>> Groups "Web We Want working group" group.
> >>>>>>>>> To unsubscribe from this group and stop receiving emails from it,
> >>>>>>>>> send an email to webwewant+unsubscribe at googlegroups.com.
> >>>>>>>>> For more options, visit https://groups.google.com/groups/opt_out
> .
> >>>>>>>>>
> >>>>>>>>>
> >>>>>>>>>
> >>>>>>>>>
> >>>>>>>>>
> >>>>>>>>> --
> >>>>>>>>> You received this message because you are subscribed to the
> Google
> >>>>>>>>> Groups "Web We Want working group" group.
> >>>>>>>>> To unsubscribe from this group and stop receiving emails from it,
> >>>>>>>>> send an email to webwewant+unsubscribe at googlegroups.com.
> >>>>>>>>> For more options, visit https://groups.google.com/groups/opt_out
> .
> >>>>>>>>>
> >>>>>>>>>
> >>>>>>>>>
> >>>>>>>>
> >>>>>>>>
> >>>>>>>> --
> >>>>>>>> *Carolina Rossini*
> >>>>>>>> http://carolinarossini.net/
> >>>>>>>> + 1 6176979389
> >>>>>>>> *carolina.rossini at gmail.com*
> >>>>>>>> skype: carolrossini
> >>>>>>>> @carolinarossini
> >>>>>>>>
> >>>>>>>>
> >>>>>>>> --
> >>>>>>>> You received this message because you are subscribed to the Google
> >>>>>>>> Groups "Web We Want working group" group.
> >>>>>>>> To unsubscribe from this group and stop receiving emails from it,
> >>>>>>>> send an email to webwewant+unsubscribe at googlegroups.com.
> >>>>>>>> For more options, visit https://groups.google.com/groups/opt_out.
> >>>>>>>>
> >>>>>>>>
> >>>>>>>>
> >>>>>>>
> >>>>>>>
> >>>>>>> --
> >>>>>>>
> >>>>>>> --
> >>>>>>>
> >>>>>>> Joana Varon Ferraz
> >>>>>>> Centro de Tecnologia e Sociedade (CTS-FGV)<
> http://direitorio.fgv.br/cts/>
> >>>>>>> @joana_varon
> >>>>>>>
> >>>>>>
> >>>>>>
> >>>>>> --
> >>>>>> *Carolina Rossini*
> >>>>>> http://carolinarossini.net/
> >>>>>> + 1 6176979389
> >>>>>> *carolina.rossini at gmail.com*
> >>>>>> skype: carolrossini
> >>>>>> @carolinarossini
> >>>>>>
> >>>>>>
> >>>>>>
> >>>>>>
> >>>>>
> >>>>> --
> >>>>> *Carolina Rossini*
> >>>>> http://carolinarossini.net/
> >>>>> + 1 6176979389
> >>>>> *carolina.rossini at gmail.com*
> >>>>> skype: carolrossini
> >>>>> @carolinarossini
> >>>>>
> >>>>>
> >>>>
> >>>> --
> >>>>
> >>>> --
> >>>>
> >>>> Joana Varon Ferraz
> >>>> Centro de Tecnologia e Sociedade (CTS-FGV)<
> http://direitorio.fgv.br/cts/>
> >>>> @joana_varon
> >>>>
> >>>>
> >>>>
> >>>
> >>> --
> >>> *Carolina Rossini*
> >>> http://carolinarossini.net/
> >>> + 1 6176979389
> >>> *carolina.rossini at gmail.com*
> >>> skype: carolrossini
> >>> @carolinarossini
> >>>
> >>>
> >>
> >> --
> >>
> >> --
> >>
> >> Joana Varon Ferraz
> >> Centro de Tecnologia e Sociedade (CTS-FGV) <
> http://direitorio.fgv.br/cts/>
> >> @joana_varon
> >>
> >
> >
>
> --
> ------------------------------------------------------
> anriette esterhuysen anriette at apc.org
> executive director, association for progressive communications
> www.apc.org
> po box 29755, melville 2109
> south africa
> tel/fax +27 11 726 1692****
> ** **
>
>
>

-- 
*Carolina Rossini*
http://carolinarossini.net/
+ 1 6176979389
*carolina.rossini at gmail.com*
skype: carolrossini
@carolinarossini
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