How International Human Rights Law Should Be Applied to NSA Spying

This past Monday , the Human Rights Committee commenced its one hundredth and 10th session in Geneva from March 10 - 28 . During this seance , the Committee will review the reports of several countries on how they are implementing the provisions of the International Covenant on Civil and Political Rights ( ICCPR ) , an international human rights treaty and one of the bedrocks of human rights protections .

Countries that have ratified the ICCPR are demand to protect and uphold basic human right through various substance include administrative , judicial , and legislative measures . Additionally , these countries are want to submit a report to the Human Rights Committee , a body of independent experts who supervise the execution of States ’ human rights obligations , every four years . The United States sign the ICCPR in 1992 and is thus tied to these obligations , and expect to consider the pact the same as it would any domestic law . The Human Rights Committee will review the US ’s human right records on Thursday , March 13 . In peculiar , the Committee will be scrutinize the US ’s mass surveillance praxis and its conformation withArticle 17on the right field to privacy .

At the opening school term of the Human Rights Committee meeting , the UN High Commissioner for Human Rights , Navy Pillay , made it clear-cut that the topic of privacy and surveillance is a anteriority :

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“ Powerful raw technologies offer the hope of improved delectation of human right , but they are vulnerable to mass electronic surveillance and interception . This threatens the rightfulness to privacy and exemption of expression and affiliation . ”

We are pleased that the Human Rights Committee has the chance to clarify the scope of United States legal obligations under Article 17 on the right wing to privacy , especially in lightness of the recent disclosure on aggregated surveillance leaked by Edward Snowden . Worldwide , the oecumenical populace is secluded to the fact that several US programs have the potential for serious privacy rights violations in the form of aggregative surveillance both at family and overseas ; a blazing infraction of the United States ’ ICCPR obligations .

We are asking the Human Rights Committee to reckon at the 13 International Principles for the program of Human Rights to Communications Surveillance — or more usually , theNecessary and Proportionate Principles , which are underpin by over 400 organizations and 300,000 person , as a guide for understand a State Party ’s compliance with Article 17 .

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Moreover , the Electronic Frontier Foundation and the Human Rights Watch submitted a joint shadow account that flag several issues for the Human Rights Committee to debate when reviewing the United States ’ report this Thursday .

Among the main issues are :

I. The US has extraterritorial obligations to uphold the right to privacy of individuals outside its borders

Given the extraordinary capabilities and computer programme of the US to supervise global communication , the Committee should ask the US to acknowledge that its obligations with deference to the right of privacy practice extraterritorially to person whose communication it scans or collects . To accept otherwise would get the better of the object and purpose of the ICCPR with respect to the privacy of borderless , global digital communications .

bear the US ’s purview that the right to privacy does not extend to its actions abroad would defeat the aim and aim of clause 17 as applied to online or digital communications . If states adopted a similar position , it would permit governments to conduct arbitrary or outlawed surveillance on the communication of any persons physically located outside their territory or jurisdiction . This status would thwart efforts of other governments to protect the privacy rights of their own residents if every other government if free to infract that right . The US ’s position is also obstinate to the principle of the universality of rights and suggest that the rightfulness to privacy can be abrogate on the basis of citizenship and effectual position .

II. Collection of personal information is an interference with privacy

In react to the Snowden revelations , US government official have implied that the US does not take electronic entropy to have been “ collect ” until that data is seek or process in some way .

The Committee should recognize that the acquirement of copying of personal information can make up an “ disturbance ” with the right field to seclusion under Article 17 , irrespective of whether the information is subsequently processed , canvas , or used by the politics .

Furthermore , the US government continues to assert a distinction between the content of communications and “ metadata ” or transactional data point . Communications metadata generally consists of information other than the content of the communications , including the phone number dialed , time or particular date of a telephone call , mobile phone location information , Internet Protocol destination , or internet site URL confab . In judicial proceeding challenging its communications surveillance programs , the US maintains that while individuals have a “ sane expectation of privateness ” in the content of their communication theory , they do not have such an expectation for their metadata , and such metadata relish significantly weak privateness aegis . In addition , the US contends that somebody forfeit their privacy rights in information that they share with the third - company company that provides communications service . As a aftermath of these two contentions , the US asserts that it may take in metadata from telephone and Internet companies without implicate their customers ’ legal right to be innocent from unwarranted searches and raptus .

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We hope the Human Rights Committee directly challenge these arguments .

As explain in the “ Necessary & Proportionate Principles , ” traditionally the invasiveness of communications surveillance has been evaluated on the groundwork of old class that are no longer appropriate for measure the degree of the intrusion that communications surveillance makes into individual ’ individual life and associations . One of the main considerateness in drafting the rationale has been to see to it that the level of protection accorded to information properly match to the stage of encroachment into multitude ’s living that can lead from access to the data by third parties . Thus any formerly used label — such as “ metadata”—that do not reflect these actual - life effects should be reject .

III. Mass collection of data is fundamentally arbitrary and disproportionate

The Committee should find that mass , indiscriminate collection , lookup , or keeping of electronic information is fundamentally arbitrary and disproportionate . Dragnet search or accumulation on large groups without some limen showing of individualised suspicion that the information to be acquired is necessary to protect interior surety , or another legitimate pursuit of the United States , should be presumptively impermissible .

EFF believes the Principles could assist the commission in formulate an reason of the right to secrecy in the light of fresh technologies . Established international human rightfield law is often still Modern in term of its diligence in the newfangled global digital world , and one of the chief design of the Principles is to render guidance and make mesmerism in that esteem ; to assure that individuals do not miss precious protection built up over many years just because the concepts and approaches developed in a pre - digital worldly concern do not always “ primed ” the new reality . The Principles seem beyond the current exercise set of divine revelation to take a broad look at how advanced communications surveillance engineering can be turn to systematically with human right wing and the rule of law .

The question remains : If the Human Rights Committee , after review the 4th occasional theme of US , provides the penis state with recommendations , also jazz as “ concluding observations , ” will the US finally follow ?

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