Contribution from members of international civil society to the U.S. Privacy and Civil Liberties Oversight Board

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)[1] and resolution 20/8 of the UN Human Rights Council (UNHRC) [2]. 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.[3] 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 [4]- to the U.S. Congress [5] and to the UNHRC [6] , 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.[7] 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.[8]

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[9], the July 2013 International Principles on the Application of Human Rights to Communications Surveillance[10], 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[11] , 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[12], 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.

[1] ICCPR available at: http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

[2] 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)

[3] 50 U.S.C. 1801(e)

[4] For more information refer to http://bestbits.net/about/

[5] See http://bestbits.net/prism-congress/

[6] See http://bestbits.net/prism-nsa/

[7] 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.

[8] A/HRC/23/40 , available at http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session23/A.HRC.23.40_EN.pdf

[9] Ibid.

[10] See https://necessaryandproportionate.org/

[11] See http://www.pclob.gov/9-July-2013

[12] 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.

Organisational endorsements

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

Individual endorsements

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