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  Exclusive: Inside America's Plan to Kill Online Privacy Rights
  Everywhere
  <http://thecable.foreignpolicy.com/posts/2013/11/20/exclusive_inside_americas_plan_to_kill_online_privacy_rights_everywhere>


    Posted By Colum Lynch <http://thecable.foreignpolicy.com/blog/16159>
    Wednesday, November 20, 2013 - 6:10 PM  Share
    <http://www.addthis.com/bookmark.php?v=20>

The United States and its key intelligence allies are quietly working 
behind the scenes to kneecap a mounting movement in the United Nations 
to promote a universal human right to online privacy, according to 
diplomatic sources and an internal American government document obtained 
by /The Cable/.

The diplomatic battle is playing out in an obscure U.N. General Assembly 
committee that is considering a proposal by Brazil and Germany to place 
constraints on unchecked internet surveillance by the National Security 
Agency and other foreign intelligence services. American representatives 
have made it clear that they won't tolerate such checks on their global 
surveillance network. The stakes are high, particularly in Washington -- 
which is seeking to contain an international backlash against NSA spying 
<http://thecable.foreignpolicy.com/posts/2013/10/25/exclusive_21_nations_line_up_behind_un_effort_to_restrain_nsa> -- 
and in Brasilia, where Brazilian President Dilma Roussef is personally 
involved in monitoring the U.N. negotiations.

The Brazilian and German initiative seeks to apply the right to privacy, 
which is enshrined in the International Covenant on Civil and Political 
Rights (ICCPR), to online communications. Their proposal, first revealed 
by /The Cable/ 
<http://thecable.foreignpolicy.com/posts/2013/10/24/exclusive_germany_brazil_turn_to_un_to_restrain_american_spies>, 
affirms a "right to privacy that is not to be subjected to arbitrary or 
unlawful interference with their privacy, family, home, or 
correspondence." It notes that while public safety may "justify the 
gathering and protection of certain sensitive information," nations 
"must ensure full compliance" with international human rights laws. A 
final version the text is scheduled to be presented to U.N. members on 
Wednesday evening and the resolution is expected to be adopted next week.

A draft of the resolution, which was obtained by /The Cable/, calls on 
states to "to respect and protect the right to privacy," asserting that 
the "same rights that people have offline must also be protected online, 
including the right to privacy." It also requests the U.N. high 
commissioner for human rights, Navi Pillay, present the U.N. General 
Assembly next year with a report on the protection and promotion of the 
right to privacy, a provision that will ensure the issue remains on the 
front burner.


        More FP CoverageTHE NSA LEAKS
        <http://thecable.foreignpolicy.com/archive/taxonomy/NSA>

  * Meet the Spies Doing the NSA's Dirty Work
    <http://www.foreignpolicy.com/articles/2013/11/21/the_obscure_fbi_team_that_does_the_nsa_dirty_work>
  * Spy Copters, Lasers, and Break-In Teams
    <http://www.foreignpolicy.com/articles/2013/11/19/spy_copters_lasers_and_break_in_teams_fbi_spies_on_diplomats>
  * The FBI is Helping the NSA Spy, but Senators Don't Want to Know
    About It
    <http://killerapps.foreignpolicy.com/posts/2013/11/14/the_fbi_is_helping_the_nsa_spy_but_senators_don_t_want_to_know_about_it>

Publicly, U.S. representatives say they're open to an affirmation of 
privacy rights. "The United States takes very seriously our 
international legal obligations, including those under the International 
Covenant on Civil and Political Rights," Kurtis Cooper, a spokesman for 
the U.S. mission to the United Nations, said in an email. "We have been 
actively and constructively negotiating to ensure that the resolution 
promotes human rights and is consistent with those obligations."

But privately, American diplomats are pushing hard to kill a provision 
of the Brazilian and German draft which states that "extraterritorial 
surveillance" and mass interception of communications, personal 
information, and metadata may constitute a violation of human rights. 
The United States and its allies, according to diplomats, outside 
observers, and documents, contend that the Covenant on Civil and 
Political Rights does not apply to foreign espionage.

In recent days, the United States circulated to its allies a 
confidential paper 
<http://columlynch.tumblr.com/post/67588682409/right-to-privacy-in-the-digital-age-u-s> highlighting 
American objectives in the negotiations, "Right to Privacy in the 
Digital Age -- U.S. Redlines." It calls for changing the Brazilian and 
German text so "that references to privacy rights are referring 
explicitly to States' obligations under ICCPR and remove suggestion that 
such obligations apply extraterritorially." In other words: America 
wants to make sure it preserves the right to spy overseas.

The U.S. paper also calls on governments to promote amendments that 
would weaken Brazil's and Germany's contention that some "highly 
intrusive" acts of online espionage may constitute a violation of 
freedom of expression. Instead, the United States wants to limit the 
focus to /illegal/surveillance -- which the American government claims 
it never, ever does. Collecting information on tens of millions of 
people around the world is perfectly acceptable, the Obama 
administration has repeatedly said. It's authorized by U.S. statute, 
overseen by Congress, and approved by American courts.

"Recall that the USG's [U.S. government's] collection activities that 
have been disclosed are lawful collections done in a manner protective 
of privacy rights," the paper states. "So a paragraph expressing concern 
about illegal surveillance is one with which we would agree."

The privacy resolution, like most General Assembly decisions, is neither 
legally binding nor enforceable by any international court. But 
international lawyers say it is important because it creates the basis 
for an international consensus -- referred to as "soft law" -- that over 
time will make it harder and harder for the United States to argue that 
its mass collection of foreigners' data is lawful and in conformity with 
human rights norms.

"They want to be able to say ‘we haven't broken the law, we're not 
breaking the law, and we won't break the law,'" said Dinah PoKempner, 
the general counsel for Human Rights Watch, who has been tracking the 
negotiations. The United States, she added, wants to be able to maintain 
that "we have the freedom to scoop up anything we want through the 
massive surveillance of foreigners because we have no legal obligations."

The United States negotiators have been pressing their case behind the 
scenes, raising concerns that the assertion of extraterritorial human 
rights could constrain America's effort to go after international 
terrorists. But Washington has remained relatively muted about their 
concerns in the U.N. negotiating sessions. According to one diplomat, 
"the United States has been very much in the backseat," leaving it to 
its allies, Australia, Britain, and Canada, to take the lead.

There is no extraterritorial obligation on states "to comply with human 
rights," explained one diplomat who supports the U.S. position. "The 
obligation is on states to uphold the human rights of citizens within 
their territory and areas of their jurisdictions."

The position, according to Jamil Dakwar, the director of the American 
Civil Liberties Union's Human Rights Program, has little international 
backing. The International Court of Justice, the U.N. Human Rights 
Committee, and the European Court have all asserted that states do have 
an obligation to comply with human rights laws beyond their own borders, 
he noted. "Governments do have obligation beyond their territories," 
said Dakwar, particularly in situations, like the Guantanamo Bay 
detention center, where the United States exercises "effective control" 
over the lives of the detainees.

Both PoKempner and Dakwar suggested that courts may also judge that the 
U.S. dominance of the Internet places special legal obligations on it to 
ensure the protection of users' human rights.

"It's clear that when the United States is conducting surveillance, 
these decisions and operations start in the United States, the servers 
are at NSA headquarters, and the capabilities are mainly in the United 
States," he said. "To argue that they have no human rights obligations 
overseas is dangerous because it sends a message that there is void in 
terms of human rights protection outside countries territory. It's going 
back to the idea that you can create a legal black hole where there is 
no applicable law." There were signs emerging on Wednesday that America 
may have been making ground in pressing the Brazilians and Germans to 
back on one of its toughest provisions. In an effort to address the 
concerns of the U.S. and its allies, Brazil and Germany agreed to soften 
the language suggesting that mass surveillance may constitute a 
violation of human rights. Instead, it simply deep "concern at the 
negative impact" that extraterritorial surveillance "may have on the 
exercise of and enjoyment of human rights." The U.S., however, has not 
yet indicated it would support the revised proposal.

The concession "is regrettable. But it’s not the end of the battle by 
any means," said Human Rights Watch’s PoKempner. She added that there 
will soon be another opportunity to corral America's spies: a U.N. 
discussion on possible human rights violations as a result of 
extraterritorial surveillance will soon be taken up by the U.N. High 
commissioner.

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