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U.N. Human Rights Report Foreshadows Recent Surveillance Revelations

Allison Frankel,
Staff Attorney,
ACLU Criminal Law Reform Project
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June 7, 2013

Revelations this week that the U.S. government has the ability to secretly tap into a wide range of Americans’ online activities, including Skype video chats and Facebook communications, serve as an eerie reminder of the threat state surveillance poses to democracy. This sentiment was echoed earlier this week at the United Nations Human Rights Council, where a landmark report spotlighted the widespread use of surveillance technologies by governments all over the world in violation of the human rights to privacy and freedom of expression.

The report was issued on Tuesday – just one day before The Guardian revealed that the National Security Agency is collecting the phone records of millions of Americans – by the U.N. independent expert on freedom of opinion and expression, Frank La Rue. It represents an important step toward ending the U.N.’s traditional silence on state surveillance. The expert’s conclusion was prompted by the dizzying proliferation of new technologies and surveillance techniques, paired with a concerning rollback in legal safeguards. As La Rue stated upon the report’s release, “The State now has a greater capability to conduct simultaneous, invasive, targeted and broad-scale surveillance than ever before.”

Foreshadowing this week’s exposure of just how wide the United States has cast its net in its surveillance programs, the report’s findings document a significant increase in unchecked executive power since wiretaps were first authorized in the United States. The report also emphasizes the troubling U.S. practices of surveilling foreign individuals’ emails, personal documents, and location data hosted by cloud services (Google and other large Internet providers) located in the United States.

The report finds:

Whereas traditionally communications surveillance was required to be authorized by the judiciary, increasingly this requirement is being weakened or removed…Many States have dispensed with the need for law enforcement agencies to return to the court for ongoing supervision after an interception order is issued…Even when judicial authorization is required by law, often it is de facto an arbitrary approval of law enforcement requests.

And as we have seen in the United States, invocations of national security are a common justification worldwide for problematic surveillance practices. “Vague and unspecified notions of ‘national security’ have become an acceptable justification for the interception of and access to communications in many countries,” says the report.

This intrusion into privacy has a chilling effect on the exercise of free expression – as the report concludes, “States cannot ensure that individuals are able to freely seek and receive information or express themselves without respecting, protecting, and promoting their right to privacy.”

Later this month, the U.S. government will have to answer to the United Nations Human Rights Committee regarding its surveillance program as it submits replies to the body of independent experts responsible for reviewing its compliance with the International Covenant on Civil and Political Rights (ICCPR) – a key human rights treaty ratified by the United States in 1992, which, among other things, protects the right to privacy and free expression. In advance of its formal review this October, the United States was asked to specify “which steps the government has taken to ensure judicial oversight over National Security Agency surveillance of phone, email and fax communications,” both inside and outside of the United States, as well as what circumstances justify “roving” wiretaps.

The ACLU will continue to work to end this abuse of power and hold the U.S. accountable to its obligation to respect the rights to privacy and free speech under the U.S. Constitution and international human rights law.

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