U.N. Human Rights Bodies Urged to Take Up NSA Spying

By Patrick Goodenough | June 14, 2013 | 4:29 AM EDT

United Nations human rights bodies are taking a closer look at National Security Agency surveillance programs. (AP Photo/Patrick Semansky)

(CNSNews.com) – Groups that advocate privacy and digital freedom -- troubled by leaked revelations of widespread National Security Agency phone and Internet surveillance -- are urging the U.N. Human Rights Council to take up the matter.

As of early Friday, almost 300 signatories had added their names to a civil society statement, asking the Geneva-based HRC to convene a special session on the NSA surveillance issue.

It also asks U.N. High Commissioner for Human Rights Navi Pillay to “prepare a report that formally asks states to report on practices and laws in place on surveillance and what corrective steps will they will take to meet human rights standards.”

“We express strong concern over recent revelations of surveillance of Internet and telephone communications of U.S. and non-U.S. nationals by the government of the United States of America and the fact that U.S. authorities makes the results of that surveillance available to other governments such as the United Kingdom,” the statement reads.

“Of equal concern is the indication of apparent complicity of some U.S.-based Internet companies with global reach.”

It cites articles of the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights, dealing with privacy and freedom of expression.

The 47-member HRC is the United Nations’ top human rights body. The Obama administration is a keen supporter, having joined the council in 2009 after reversing its predecessor’s policy of shunning it.

HRC’s membership includes a sizeable number of countries whose human rights records are regarded as poor, and those countries typically have teamed up to criticize preferred targets such as Israel and the United States.

The current makeup is less controversial than in previous years, however, as term limits have seen countries like China, Cuba, Saudi Arabia and Russia rotate off (for one year, at least). Of the 47 members in 2013, 23 are defined as “free” by the democracy watchdog Freedom House, 10 as “not free,” and 14 “partly free.”

Still, should NSA surveillance be taken up by the council, the U.S. would likely face criticism from a wide spectrum of members, from perennial critics such as Venezuela to generally more friendly countries in Europe, Asia, Africa and Latin America.

The surveillance issue also would probably be conflated with other issues of online freedom; the U.S. has frequently criticized regimes like China and Iran for Internet censorship, online snooping on cyber-dissidents – who often end up in prison – and other abuses. An HRC examination of NSA surveillance would give the targets of such criticism the opportunity to put the U.S. in the dock.

One day before the NSA phone and Internet surveillance stories broke last week, the U.N.’s “independent expert on freedom of opinion and expression,” Frank La Rue, submitted a report to the HRC on how the surveillance of communications impacts the right to privacy and freedom of opinion and expression.

“Concerns about national security and criminal activity may justify the exceptional use of communications surveillance,” La Rue said in presenting the report. “Nevertheless, national laws regulating what constitutes the necessary, legitimate and proportional state involvement in communications surveillance are often inadequate or simply do not exist.”

The report cited the U.S. as one of several examples of countries where intelligence agencies “enjoy blanket exceptions to the requirement for judicial authorization.”

UN committee wants answers on surveillance oversight

Meanwhile another U.N. body also has its sights on NSA surveillance.

The Human Rights Committee, a body of 18 experts that is separate from the HRC, is tasked to oversee compliance of U.N. member states with the ICCPR, a treaty that came into force in 1976 and has been ratified by 167 states, including the U.S. in 1992.

During a Human Rights Committee session running from Oct. 14-Nov.1 this year, the United States’ compliance with the ICCPR will be on the agenda. It will be the U.S.’s fourth periodic review.

In preparation for that review, the U.S. government earlier submitted a 188-page report on its ICCPR compliance, covering the covenant’s 27 articles, ranging from “self-determination” to “the rights of minorities to culture, religion and language.”

In the section on article 17 (“freedom from arbitrary interference with privacy, family, home”), the report refers to the gathering of intelligence from “non-U.S. persons” to deal with terrorism, as regulated by the 1978 Foreign Intelligence Surveillance Act, and subsequent amendments to FISA made under the USA PATRIOT Act, Protect America Act and others.

FISA amendments in 2008 included a provision granting immunity to telecommunications providers from wiretapping lawsuits, the report noted.

It also said FISA amendments that have been reauthorized until mid-2015 include a provision “which allows a non-United States person who ‘engages in international terrorism or activities in preparation therefore’ to be considered an agent of a foreign power under FISA”; and a section of the USA PATRIOT Act that allows “roving” wiretaps under certain circumstances.

(This procedure allows agents to follow a target and lawfully intercept communication with a single court order even if the suspect changes communications devices in a bid to evade surveillance.)

The Human Rights Committee considered that U.S. government report, and at a meeting last March drew up a set of questions which it wants U.S. representatives to answer during the upcoming review in the fall. They include the following:

--“Please provide information on steps taken to ensure judicial oversight over National Security Agency surveillance of phone, email and fax communications both within and outside the State party” – that is, both inside the U.S. and abroad.

--“Please also specify what circumstances, as mentioned in section 206 of the USA Patriot Act, justify ‘roving’ wiretaps.”

Patrick Goodenough
Patrick Goodenough
Spencer Journalism Fellow