Protecting Human Rights and Civil Liberties of Non-US Persons
Commentary on Surveillance Programs in response to PCLOB’s request ID: PCLOB-2013-0005-0001
To Members of the Privacy and Civil Liberties Oversight Board:
We, the undersigned organizations and individuals from the U.S. and around the world, welcome this opportunity to submit comments to the U.S. Privacy and Civil Liberties Oversight Board (PCLOB).
We are concerned that surveillance conducted by the U.S. National Security Agency (NSA) under Section 702 of the U.S. Foreign Intelligence Surveillance Act (FISA) and other legal authorities is inconsistent with international human rights norms and U.S. international commitments, as embodied in the International Covenant on Civil and Political Rights (ICCPR) and resolution 20/8 of the UN Human Rights Council (UNHRC) . We are particularly concerned about the human rights and civil liberties of non-U.S. persons, as defined under FISA, and urge you to give full consideration to the rights of non-U.S. persons in your findings and recommendations. Human rights are universal and must be guaranteed to all persons. We strongly advocate that current and future legal provisions and practices take this principle into consideration.
As you are aware, Section 702 permits the government to target non-U.S. persons — persons who are not citizens or permanent resident aliens and are located outside the U.S. — for foreign intelligence purposes without obtaining a specific warrant or court order. This may include the overseas family, friends, and business associates of people in the U.S., as well as individuals whose communications flow through or are stored within the U.S. even if they have no direct communications with anyone located in the U.S.
While the U.S. FISA Court approves targeting and minimization guidelines designed to protect U.S. persons whose communications have been swept into foreign surveillance activity, those guidelines do not protect non-U.S. persons. The targeting guidelines purport to focus the surveillance on non-U.S. persons who are outside the U.S. and the minimization guidelines impose no restrictions on use and retention of foreign communications that do not concern or involve U.S. persons.
Further, surveillance under Section 702 is permissible if it is conducted for “foreign intelligence” purposes. This concept is so elastic as to allow even the collection of information about activities outside the U.S. that merely “relate to” U.S. foreign affairs. This encompasses everything from monitoring of protesters outside a U.S. base in one country to monitoring communications about a protest of rising food prices in another. Section 702 empowers the NSA to compel U.S. communications service providers to turn over the communications of global citizens even when the targets have no ties to crime, terrorism, or espionage. Secret surveillance of entirely lawful activities – including the type of political organizing and protest that is fundamental to a democratic society – chills freedom of opinion and expression and limits the right of association.
As stated in letters from the Best Bits Coalition – a coalition of civil society organizations, think tanks, academics and experts on internet governance and human rights from around the world - to the U.S. Congress  and to the UNHRC  , the introduction of surveillance mechanisms by the U.S. under section 702 strikes at the heart of global digital communications and severely threatens human rights in the digital age. The threat of unnecessary, disproportionate, and unaccountable extra-territorial surveillance not only violates rights to privacy and human dignity, but also threatens the fundamental rights to freedom of thought, opinion and expression, and association that are at the center of any democratic practice. Such surveillance must be scrutinized through ample, deep, and transparent debate. Interference with the human rights of citizens by any government, their own or foreign, is unacceptable. As UN Special Rapporteur on the promotion and protection of freedom of opinion and expression Frank La Rue notes in his recent report, the inability of citizens to know the extent of foreign surveillance, to challenge such surveillance, or to seek remedies is even more alarming.
We, the signatories, are disappointed that disclosure statements to date by U.S. authorities in response to the revelations on NSA surveillance have almost only focused on the impact of these surveillance programs on U.S. persons. There has been little attention paid to communications of non-U.S. persons, which, as noted above, poses grave threats to the human rights of individuals around the world.
We urge you to make findings and recommendations to ensure that surveillance of communications conducted under Section 702 meets international human rights standards for surveillance, as reflected in the recent report of Frank La Rue, the July 2013 International Principles on the Application of Human Rights to Communications Surveillance, and other U.S. commitments, international instruments and law.
Among other criteria, government surveillance must be subject to a strong legal framework that is transparent, necessary to achieve a legitimate goal and proportionate to that goal, authorized by a competent judicial authority, and subject to public oversight. We believe that the Section 702 surveillance regime fails to meet these standards.
Though the privacy and civil liberties of non-U.S. persons were barely mentioned at the Privacy and Civil Liberties Oversight Board’s July 9th public workshop , we strongly believe that they are within PCLOB’s statutory mandate. PCLOB must ensure that U.S. government actions related to national security are balanced against the need to protect privacy and civil liberties. It also must ensure that privacy and civil-liberties-related concerns are appropriately considered in the development and implementation of anti-terrorism laws, regulations, and policies. There is nothing in this mandate, and no compelling reason, to restrict PCLOB’s focus narrowly to U.S. persons or to people within the U.S. The civil liberties and privacy interests of individuals across the globe are at stake, and there is a desperate need for leadership in holding the U.S. government accountable to its human rights obligations.
We urge you to make findings and recommendations designed to protect the human rights not only of U.S.-persons, but also of non-U.S. persons. We believe that such findings and recommendations would not only be consistent with the U.S. government’s frequently stated commitment to ‘freedom online’, but would also constitute a valuable contribution to developing and implementing a robust global framework for such protections.
 UN Human Rights Council resolution 20/8, The promotion, protection and enjoyment of human rights on the Internet. Available at: http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/20/8 (June, 2013)
 For more information refer to http://bestbits.net/about/
 See http://bestbits.net/prism-nsa/
 Articles 17, 19 and 21 of the ICCPR. In particular, Article 17 of the International Covenant on Civil and Political Rights, to which the U.S. is a party, provides that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home, or correspondence, and that everyone has the right to the protection of the law against such interference or attacks.
 See http://www.pclob.gov/9-July-2013
 See http://www.pclob.gov/All%20Documents/PCLOB%20enabling%20statute_42_USC_SE_2000ee.pdf As amended, this mandate establishes PCLOB as an independent entity within the Executive Branch of the U.S. government that analyses actions the executive branch takes to protect the U.S. from terrorism.
Endorsement of letter to the U.S. Privacy and Civil Liberties Oversight BoardRead the petition
|42||FUNREDES||Aug 30, 2013|
|41||Open Knowledge Foundation Brasil (local group)||Brazil||Aug 15, 2013|
|40||Panoptykon Foundation||Poland||Aug 13, 2013|
|39||Reporters Without Borders (RSF)||Aug 12, 2013|
|38||Human Rights Watch||Aug 12, 2013|
|37||Centre for Internet and Society||India||Aug 12, 2013|
|36||Thai Netizen Network||Thailand||Aug 10, 2013|
|35||Bytes for All, Pakistan||Pakistan||Aug 09, 2013|
|34||Public Knowledge||USA||Aug 07, 2013|
|33||OpenMedia.org||Aug 06, 2013|
|32||Foundation for Media Alternatives||Philippines||Aug 03, 2013|
|31||CELE -Centro de Estudios en Libertad de Expresión y Acceso a la Información de la Universidad de Palermo||Argentina||Aug 02, 2013|
|30||ARTICLE 19||United Kingdom||Aug 01, 2013|
|29||New America Foundation's Open Technology Institute||USA||Aug 01, 2013|
|28||Electronic Frontier Finland (Effi)||Finland||Aug 01, 2013|
|27||Reporters of the Presidency - youth media online||HUNGARY||Aug 01, 2013|
|26||JCA-NET||Japan||Aug 01, 2013|
|25||SFLC.in||India||Aug 01, 2013|
|24||Asociación por los Derechos Civiles (ADC)||Argentina||Aug 01, 2013|
|23||Korean Progressive Network Jinbonet||South Korea||Aug 01, 2013|
|22||Global Illuminators International||Malaysia||Aug 01, 2013|
|21||IT for Change||India||Aug 01, 2013|
|20||Instituto Bem Estar Brasil||Brasil||Aug 01, 2013|
|19||Center for Law and Technology||Nepal||Aug 01, 2013|
|18||Association for Progressive Communications||International||Jul 31, 2013|
|17||Bangladesh NGOs Network for Radio and Communication||Bangladesh||Jul 31, 2013|
|16||Access||Jul 30, 2013|
|15||mbavou.org||Cameroon||Jul 30, 2013|
|14||Bolo Bhi||Jul 30, 2013|
|13||Instituto Brasileiro de Direito da Informática (IBDI)||Brazil||Jul 30, 2013|
|12||GreenNet||UK||Jul 30, 2013|
|11||Centre for Communication Governance, National Law University, Delhi||India||Jul 30, 2013|
|10||Grupo de Ensino e Pesquisa em Inovação da DIREITO GV - Fundação Getulio Vargas||Brazil||Jul 29, 2013|
|9||Fundacion Karisma||Colombia||Jul 29, 2013|
|8||New Rights Group||United States||Jul 29, 2013|
|7||Center for Technology and Society (CTS/FGV)||Brazil||Jul 29, 2013|
|6||Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic (CIPPIC)||Canada||Jul 29, 2013|
|5||Internet Democracy Project||India||Jul 29, 2013|
|4||Center for Democracy & Technology||USA||Jul 29, 2013|
|3||Asociación Colombiana de Usuarios de Internet||Colombia||Jul 28, 2013|
|2||Consumers International||Jul 27, 2013|
|1||Global Partners Digital||UK||Jul 26, 2013|
|31||Elsabeth Parkinson||Australia||Oct 12, 2013|
|30||Michael Markham||Sep 24, 2013|
|29||Sandra Harris||Canada||Aug 31, 2013|
|28||Peter Vickers||Canada||Aug 30, 2013|
|27||Dianne Varga||Canada||Aug 30, 2013|
|26||Nicholas Williams||UK||Aug 25, 2013|
|25||Everton Zanella Alvarenga||Brazil||Aug 15, 2013|
|24||Avri Doria||USA||Aug 14, 2013|
|23||Apar Gupta||India||Aug 11, 2013|
|22||Diana Davies||United States||Aug 10, 2013|
|21||André Koot||The Netherlands||Aug 10, 2013|
|20||Jason Gulledge||USA||Aug 10, 2013|
|19||Bethany Horne||Canada||Aug 10, 2013|
|18||Jacob Appelbaum||United States||Aug 10, 2013|
|17||Tobias Peters||Germany||Aug 08, 2013|
|16||Danny O'Brien||United Kingdom||Aug 05, 2013|
|15||Fortune Nwaiwu||Aug 02, 2013|
|14||Craig Hubley||Canada||Aug 01, 2013|
|13||Tapani Tarvainen||Finland||Aug 01, 2013|
|12||Susie Kim||Cananda||Aug 01, 2013|
|11||Momeni Avis||Cameroon||Jul 31, 2013|
|10||Valdes Nzalli||Cameroon||Jul 30, 2013|
|9||Andrew Garton||Australia||Jul 30, 2013|
|8||Ellery Biddle||United States||Jul 29, 2013|
|7||Emmanouil Bougiakiotis||Greece||Jul 29, 2013|
|6||Nnenna Nwakanma||Côte d'Ivoire||Jul 29, 2013|
|5||Uta Meier-Hahn||Germany||Jul 29, 2013|
|4||Sonigitu Ekpe||Nigeria||Jul 29, 2013|
|3||Chris Hargrove||United States||Jul 27, 2013|
|2||Chris Rusbridge||United Kingdom||Jul 27, 2013|
|1||Carolina Rossini||Brazil||Jul 26, 2013|