By Danny O’Brien and Katitza Rodriguez | EFF | September 17, 2013
The surveillance scandal has now reached the United Nation’s Human Rights Council, which opened its 24th session last week to a volley of questions about privacy and spying, many of them targeted at the United States and United Kingdom. (That’s perhaps not surprising, since U.N. representatives were among those listed as being monitored by the NSA and GCHQ).
The opening statement by the eminent South African human rights lawyer Navi Pillay (now the U.N.’s High Commissioner for Human Rights) warned of the “broad scope of national security surveillance in countries, including the United States and United Kingdom,” and urged all countries to “ensure that adequate safeguards are in place to prevent security agency overreach and to protect the right to privacy and other human rights.” On September 13, the German Ambassador Schumacher delivered a joint statement on behalf of Austria, Germany, Liechtenstein, Norway, Switzerland and Hungary expressing their concern about the consequences of “surveillance, decryption and mass data collection.”
One part of the potential solution to those concerns will be officially launched this Friday in a Human Rights Council side-meeting on digital privacy hosted by these same concerned countries: the International Principles on the Application of Human Rights to Communications Surveillance.
For over a year, EFF has been working with other civil liberties groups to develop these principles that spell out how existing human rights law applies to modern digital surveillance. The 13 Principles — which have been signed by 258 organizations across the world— also provide a benchmark that people around the world can use to evaluate and push for changes in their own surveillance laws. For this 24th session, EFF has joined RSF and APC in a joint written submission to the HRC, advocating for these checks and balances.
The Human Rights Council isn’t the only diplomatic venue at the United Nations where complaints about the United States’ surveillance practices are being heard. The Human Rights Committee is also set to scrutinize the United States on its compliance with Article 17 (right to privacy) of the International Coventant on Civil and Political Rights. The United States’ written response to Human Rights Committee has already laid out its diplomatic response in favor of the Patriot and FISA provisions. It notably dodges the key question that is emerging from other countries regarding these programs: if the U.S. government cannot rein in its domestic surveillance program, riven as it is with constitutional and statutory problems, just how much worse are the controls on the surveillance of non-US persons?
More directly relevant to the diplomatic community is a connected question: how can the United States accuse, with a straight face, other countries of undermining “Internet Freedom” through the use of malware and mass spying, when it seems that there are precious few internal limits to what its own security services are permitted to do in the same arena?
This is not just a matter of the United States’ international reputation. The greatest risk to the Internet in the international arena right now lies in the formation of an unholy alliance between countries who are already seeking excuses to spy and censor the net and those, like the United States, who have previously argued against such practices, but are now having to defend their own surveillance excesses with similar language.
Without promising substantive reform at home, the U.S. and the U.K. risk alienating their own allies at the United Nations, while granting a carte blanche for other countries to pursue a repressive Internet agenda abroad. The Western countries implicated in the NSA scandal should grab onto the full set of principles as a liferaft: a way that they can show a commitment to transparency and proportionality in a way that obliges other countries to follow the same standards. Otherwise, the U.S. and the U.K. will be seen as having started a race to the bottom of privacy standards: a race too many other countries will be happy to join.