This week the United States will stand before an expert body at the United Nations and be forced to face difficult questions regarding its human rights record, including its performance on the right to privacy. Among the list of issues prepared by the Human Rights Committee for the review and shadow reports by human rights organizations is mass government surveillance and the U.S.’s refusal to recognize the extraterritorial application of human rights obligations.
Why is the U.S. undergoing this review?
All governments that have agreed to ratify the International Covenant on Civil and Political Rights (ICCPR) must undergo a periodic review by the U.N. Human Rights Committee. The purpose of the six-hour review is to monitor state compliance with the ICCPR, which covers a range of civil and political rights, from the rights to freedom of expression and association to the right to privacy. The U.S. review was initially scheduled for October 2013, but was postponed due to the shutdown of the U.S. government last fall.
While all 167 governments that are party to the ICCPR must undergo this review, the U.S. review is attracting quite a bit of attention. In fact, according to the American Civil Liberties Union the Committee had to reserve a bigger hall to accommodate the official U.S. delegation and the more than 70 human rights advocates and observers who will attend.
NSA surveillance — a hot button issue
The U.S.’s appearance before the Human Rights Committee provides an excellent opportunity to address the NSA’s mass surveillance program and the ways in which it endangers rights protected in the ICCPR. These include the rights to privacy (Article 17), freedom of expression (Article 19), and freedom of association (Article 22) not only for U.S. persons, but for people living all over the world.
Access, together with the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC) and Privacy International, submitted a shadow report to the Committee underscoring that the U.S. government’s ongoing, indiscriminate surveillance of worldwide internet users, authorized by Executive Order 12333, PATRIOT Act Section 215, and FISA Amendments Act Section 702, is inconsistent with the rights enshrined in the ICCPR, including clear violations of the right to privacy under Article 17.
Our joint submission also highlighted the International Principles on the Application of Human Rights to Communications Surveillance, which provide civil society groups, industry, States and others with a framework to evaluate whether current or proposed surveillance laws and practices are consistent with human rights.
We indicated for the Committee where U.S. government surveillance is inconsistent with a number of the Principles, in particular, Legality, Necessity, Proportionality, Competent Judicial Authority, Transparency, Public Oversight, and Due Process. With nearly 400 organizations and more than 285,000 individuals endorsing the Principles, they speak to a growing global consensus that modern mass surveillance has gone too far and needs to be restrained.
Recommendations
We are asking that the Committee make the following recommendations to the U.S. government:
- Pass legislation that would end mass surveillance and introduce an independent advocate into the Foreign Intelligence Surveillance Court’s processes.
- Refrain from the bulk collection under any authority. Instead, requests for foreign intelligence should be made if there are reasonable grounds to believe the information is relevant to a particular investigation and the order is limited in scope.
- Conduct regular studies of the NSA’s surveillance authorities and programs to ensure necessity and proportionality and compliance with the ICCPR and other sources of international law.
- Recognize the intrusiveness of metadata surveillance.
- Increase protections for international users under Section 702 and EO 12333.
- Ensure greater transparency around surveillance powers and authorities. Transparency should be the default. Legal opinions, in particular, should be largely declassified.
- Ensure the FISA Court is properly advised on technical issues.
- Ensure the independence of the FISA Court by altering the method of selecting judges.
- Release comprehensive transparency reports, which include the total number of requests under specific authorities for specific types of data, and the specific number of individuals affected by each.
- Increase the oversight capabilities of PCLOB.
How to follow the review
The U.S. review will be live webcast and will take place in two parts:
- Part One – Thursday, March 13th, at 3PM in Geneva (CET)
- Part Two – Friday, March 14th, at 10AM in Geneva (CET)