[governance] Transparency, National Security, and Protecting Rights Online

[David Sullivan]

With apologies for cross-posting...

http://globalnetworkinitiative.org/news/transparency-national-security-and-protecting-rights-online

*Transparency, National Security, and Protecting Rights Online*

*Date: *Friday, June 28, 2013

In light of recent events, the Global Network Initiative calls on the
United States and other governments to increase the transparency,
oversight, and accountability of laws, regulations, and actions concerning
communications surveillance.

*GNI Principles and the rule of law *

GNI’s Principles on Freedom of Expression and
Privacy<http://globalnetworkinitiative.org/principles/index.php>are
rooted in international human rights law, while also recognizing that
companies are compelled to obey domestic law in countries where they
operate.

GNI does not underestimate the challenge governments face in finding the
appropriate balance between security and privacy and free expression. But
international human rights standards set out narrowly defined circumstances
under which governments may restrict the rights to free expression and
privacy.1

GNI is particularly concerned by surveillance programs that restrict the
right to privacy in the context of inadequate legal safeguards. This is a
global problem. Recent statements by U.S. authorities make clear the need
for informed public debate on whether legislative and judicial oversight of
surveillance that occurs entirely in secret is consistent with
international human rights standards and the rule of law. The lack of
transparency in the United States around the Foreign Intelligence
Surveillance Court (FISC) interpretations of the FISA Amendments Act and
Section 215 of the USA PATRIOT Act, as well as the inability of companies
to report on the requests they are receiving, make it difficult for
companies operating in the United States to be transparent regarding their
efforts to protect free expression and privacy.

In light of this we call for three specific actions:

*1) Create a declassification process for significant legal opinions to
inform public debate and enable oversight of government actions. *

GNI supports recently proposed legislation to facilitate declassification
of significant legal decisions by the FISC and the FISC Court of Review. We
recognize that unclassified summaries of FISC opinions may be necessary in
some cases but believe that greater declassification will enable informed
public debate as well as improve public oversight of the nature and the
scope of the government’s use of FISA authorities.

*2) Revise the provisions that restrict discussion of national security
demands. *

While understanding the need for confidentiality in matters of national
security, GNI is deeply concerned by the nondisclosure obligations imposed
on companies who receive FISA orders and National Security Letters (NSLs).
These letters effectively and perpetually prohibit companies from reporting
even in general terms, after the fact, on the national security demands
they receive.  Policymakers should seriously consider reforms that would
require government authorities to make a factual showing to the court to
demonstrate that harm would result from disclosure, before issuance or
renewal of gag orders, or placing a specific time limit on those orders.

*3) Governments—especially those already committed to protecting human
rights online—should lead by example and report on their own surveillance
requests.*

GNI commends the 21 governments of the Freedom Online
Coalition<http://freedomonline.tn/Fr/about-the-freedom-online-coalition_11_50>for
their commitment to protecting free expression and privacy online and
urges other governments to follow their lead.

However, the credibility of their efforts ultimately rests on the example
they set through their own domestic laws and policies. Contradictions
between countries’ domestic surveillance policies and practices and their
foreign policy positions on Internet freedom and openness fundamentally
undermine their ability to advocate for other governments to support
Internet freedom.

GNI urges the governments in the Freedom Online Coalition to report on the
requests they make for electronic communications surveillance. We also urge
them to make it legally possible for companies to report regularly to the
public on the government requests that they receive from law enforcement as
well as national security authorities. Annual reports, such as the U.S.
Wiretap Report and the U.K. Government report of the Interception of
Communications Commissioner offer a starting point for more comprehensive
disclosure of information about the number of national security
surveillance orders made and the number of persons affected.

*Next steps*

GNI will advocate strongly with all governments, including the U.S., on
behalf of these reforms, which are a prerequisite for informed global
public debate on the balance between national security and privacy and
freedom of expression rights. We view such transparency reforms as
necessary first steps in examining whether domestic law adequately protects
the rights to privacy and freedom of expression. All governments have a
responsibility to work together with the private sector and civil society
to determine the narrowly defined circumstances (based on internationally
recognized human rights laws and standards) under which surveillance can
take place. We will continue to push for this dialogue and press
governments to meet their obligation to protect the rights of freedom of
expression and privacy for people all over the world.

 1. Guidance on these circumstances can be found in Articles 17 and 19 of
the International Covenant on Civil and political Rights
(ICCPR)<http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx>.
Further specific guidance is available in the Johannesburg Principles on
National Security, Freedom of Expression and Access to
Information<http://www.article19.org/data/files/pdfs/standards/joburgprinciples.pdf>
.

-- 
David Sullivan
Policy and Communications Director
Global Network Initiative <http://www.globalnetworkinitiative.org>
Office: +1 202 741 5048
Mobile: +1 646 595 5373
PGP: 0x60D244AA
@David_MSullivan <https://twitter.com/David_MSullivan>

GNI has moved, please note our new address:
1200 18th St. NW, Suite 602
Washington, DC 20036
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