All too often bills are proposed and laws are passed in the United States that are in grave violation of the United States' obligations under the International Covenant on Civil and Political Rights. And all too rarely does U.S. domestic policy get spoken about in terms of human rights laws. A case in point: the recent spate of bills responding to the unlawful mass surveillance conducted by the NSA revealed in the flood of disclosures from whistleblower Edward Snowden.
The NSA's actions are fundamentally at odds with the human rights to privacy, free expression, freedom of information, as well as the basic right to assemble and organize for change. Yet none of the current Congressional legislative proposals, or the expected legislation to be sponsored by President Obama, are good enough to fully comply with the United States' human rights obligations.
To help provide a framework to talk about mass government surveillance in terms of international human rights obligations, EFF worked with a broad spectrum of organizations across the world to craft the 13 International Principles on the Application of Human Rights to Communications Surveillance. The Principles are firmly rooted in well-established human rights law, drawing on the rights to privacy, freedom of opinion and expression and freedom of association.
Our friends at AccessNow measured how the four legislative proposals stack up against the 13 Principles. Unfortunately, none of the proposed solutions fully bring the NSA back within the bounds of human rights laws. But one in particular, the USA FREEDOM Act, is in closest (although, still imperfect) concordance with the Principles.
Two of the bills proposed in Congress, if passed, would actually move the United States in the wrong direction, driving the U.S. further away from the 13 Principles. By far, the worst proposed reform was introduced by Senator Diane Feinstein: the FISA Improvements Act, and it seeks to codify some of the worst aspects of NSA spying into law. Particularly, it attempts to legalize bulk collection, an inherently disproportionate activity that treats everyone who uses communications technology as worthy of surveillance, and without proper judicial review.
The wrong reforms
Feinstein’s fake fix is a violation of international law and would more permanently position U.S. surveillance in direct contradiction with the requirements of international law, such as legality, legitimate aim (the idea that surveillance should only occur if there is a well defined legal interest in doing so), and proportionality, all spelled out in the 13 Principles. The NSA’s “collect it all” strategy— which gathers information regardless of whether it pertains to individuals who likely committed a crime—is against international law, which, as the Principles outline, requires that restrictions on human rights be both “necessary” and “proportionate” and subject to meaningful and timely judicial review. The FISA Improvements Act aims to bestow Congressional approval upon the NSA’s bulk collection practices. It’s a terrible bill, and we must not let it pass.
The White House has also indicated that it will offer legislation to reform the NSA’s bulk surveillance, although the details of this proposal have not been revealed. Until the proposed legislation is released, it will be hard to tell if Obama’s reforms would legally protect the right to privacy as required by international law. But the proposals he outlined do contain increased protections for U.S. persons whose call records metadata is unconstitutionally collected, as well as various ways of minimizing how much is collected by limiting the scope of what is searched through when the NSA queries its database of collected call records.
Unfortunately, it appears that the President’s plan will be lacking other features required by the Principles. Obama’s proposals fall silent on the need for increased transparency of the FISA Court, the secret court that’s been making secret interpretations of the law to enable U.S. global surveillance. The White House proposals also offer no details on how non-U.S. persons will be protected from American surveillance. Individuals should not be denied privacy rights simply because they live in another country from the one that is surveilling them.
There’s also the FISA Transparency and Modernization Act, a bill that might look pretty good on its face, in that it pretends to be an attempt to end NSA’s bulk collection of call records. But in truth, it’s an awful bill that actually contains a provision to create an entirely new government "authority" to collect other electronic data that doesn’t require judges to specifically approve the person who is spied on. This bill is a step backwards, and if passed, would put the US further at odds with our international human rights obligations by permitting the collection, retention, and searching of communications records as long as they are considered useful “foreign intelligence information”. That has been interpreted in the past to mean almost “everything” and is totally antithetical to the 13 Principles: governments should only conduct communication surveillance that is legitimate in aim, proportionate to the needs of an investigation, and approved by a competent judicial authority. The FISA Transparency and Modernization Act is just another way to entrench current NSA practices into law.
Back on track
Luckily, the USA FREEDOM Act is not so weak, and we think it’s an important first step in putting an end to overbroad and illegal mass surveillance. If passed and interpreted correctly, the bill should put the brakes on the NSA’s bulk collection of call records and (the allegedly discontinued) collection of Internet records. The USA FREEDOM Act, would require that any records collected be relevant to an existing investigation and pertain to the activities of agents of a foreign power. Although, we are very nervous that this language might leave too much room for a broad interpretation, it could signal an improvement.
The USA FREEDOM Act would also bring new levels of transparency to the secret FISA court by requiring all significant decisions made by the court to be disclosed or thoroughly described by the Attorney General. The bill further proposes to assign a special advocate to champion civil liberties in the FISA court and would carve out a route for judicial review of gag orders placed on companies when the federal government compels them to hand over user data. This would be a major step towards restoring due process.
Ending bulk collection of call records and Internet records would move the NSA surveillance activities closer to compliance with international human rights law. The 13 Principles help to define a basic standard of what it means to conduct communications surveillance that is proportionate: for one, any government surveillance should be relevant to the context of an investigation, and the USA FREEDOM Act goes a long way towards meeting a basic standard, in that any government surveillance should be limited to gathering information that is relevant to a specified authorized investigation.
It’s going to be a long road to reform, and we’re still a great distance away from seeing U.S. intelligence gathering practices promote and protect human rights. The USA FREEDOM Act isn't an ideal model for surveillance reform, but passing the bill would be a serious victory and point Congress towards reforms that would help to restore our basic right to privacy, add new levels of transparency to secret legal processes, and help Americans regain a sense of trust in our government.
It's a disservice to our globally connected world and the potential of a borderless Internet to only speak of the NSA's unlawful activities in terms of U.S. law and its effects on U.S. persons. Refusing to talk about mass global surveillance within a framework of international human rights law perpetuates the myth that the United States is not a perpetrator of human rights abuses. That’s why it’s so important to rearticulate U.S. reforms and laws in terms of international human rights. This fantastic graphic from our friends at AccessNow illustrates how far we have to go, but it’s clear that the USA FREEDOM Act is the best option now and a good starting point to truly put an end to illegal NSA surveillance.