The United Nations' campaign to rein in the U.S. National Security Agency's ability to conduct mass surveillance of electronic communications is just getting started.
The U.N.'s human rights chief on Wednesday, July 16, charged that the mass surveillance and interception of electronic communications by the United States, Britain, and other governments threatens to erode long-established human rights and privacy protections.
The move sets the stage for ongoing efforts by key governments, including leading critics of U.S. surveillance practices like Brazil and Germany, to continue to press for greater constraints at the U.N. General Assembly and the U.N. Human Rights Council in the fall. Such U.N. initiatives and resolutions, which are routinely renegotiated each season, can be the subject of debate for years and years, providing a regular avenue for criticizing American espionage on the world stage.
In a report titled, "The Right to Privacy in the Digital Age," Navi Pillay, the U.N. high commissioner for human rights, said that the mass collection of electronic communications, including telephone metadata of the type routinely sucked up by the NSA, poses a threat to a range of existing human rights protections, including the right to freedom of expression, opinion, privacy, and peaceful assembly.
Pillay concludes that existing safeguards have failed to protect individuals' privacy. For instance, judicial review bodies set up by governments to protect individuals from unreasonable privacy intrusions "have amounted effectively to an exercise in rubber-stamping."
Mass surveillance is "emerging as a dangerous habit rather than an exceptional measure," she said. "The very existence of a mass surveillance programme … creates an interference with privacy. The onus would be on the State to demonstrate that such interference is neither arbitrary nor unlawful."
Pillay's report does not directly accuse the United States of violating individuals' privacy rights through its sweeping collection of electronic communications. Still, it notes that international concerns over such activities have amplified following revelations by former U.S. contractor Edward Snowden, first published by the Guardian and the Washington Post, suggesting that the NSA and its British counterpart, the Government Communications Headquarters, "have developed technologies allowing access to much global internet traffic, calling records in the United States, individuals electronic address books and huge volumes of other digital communications content."
Pillay acknowledged that there are legitimate reasons for law enforcement and intelligence agencies to collect electronic communications. But she said that a "disturbing" veil of secrecy around the practice of government surveillance has made it all but impossible to hold people accountable for abusing such practices. "Surveillance is not an abstract phenomenon," she told reporters at a press conference on Wednesday. "It can result in damaging or even lethal actions. In some states, people identified as dissidents by digital surveillance have been targeted for further investigations -- and in several cases, credible allegations indicate that they have been tortured or otherwise abused."
The U.N. General Assembly commissioned the 16-page report last December at the urging of Brazil and Germany, which are waging a broad campaign to curtail the NSA due to disclosures that the U.S. surveillance agency has spied on the German chancellor, Angela Merkel, as well as Brazilian government officials and oil executives.
A spokesman for the U.S. mission to the United Nations declined a request for comment on the report. Germany, where anti-American feelings are spiking due to revelations of new U.S. spying efforts there, applauded Pillay's findings.
"The search for a needle in a haystack cannot justify massive surveillance of personal data," Germany's U.N. envoy, Harald Braun, told Foreign Policy in an email. "The report is an important step towards better protection of the right to privacy in the digital world -- a goal we will continue to promote internationally."
The report's release sets the stage for a series of follow-on measures at the U.N. aimed at increasing the pressure on the United States and Britain to place limits on their electronic espionage. In September, the U.N. high commissioner will also discuss the report at a panel on the sidelines of the Human Rights Council session. The U.N. General Assembly is expected to discuss the report's findings later in the year and possibly follow through with the adoption of a new resolution. Experts say the General Assembly may establish a special post for a U.N. special rapporteur to advocate for stricter rules protecting online privacy, or ask the U.N. Human Rights Council to take steps designed to address online privacy concerns.
In the report, Pillay called on governments to conduct a major review of their national laws in order to strengthen human rights protections, noting that "weak procedural safeguards and ineffective oversight" have "contributed to a lack of accountability for arbitrary or unlawful interference in the right to privacy."
"Digital communications are vulnerable to electronic surveillance and interception -- and it has become evident that new technologies are being developed covertly to facilitate these practices, with chilling efficiency," Pillay told reporters at the press conference, which was in Geneva, where the report was released. "In this technological era, people are increasingly reliant on digital media in their political, economic, and social lives. It is fundamental that the human rights they hold offline should also be protected online."
Pillay noted that existing treaties underscore the right to privacy. The International Covenant on Civil and Political Rights, for instance, states that "no one shall be subjected to arbitrary or unlawful interference with his [or her] privacy, family, home or correspondence." The United States, however, has challenged the notion that the right to privacy applies to the extraterritorial activities of foreign spies.
The U.N. official criticized governments for engaging in the "de facto coercion of private-sector companies to provide sweeping access to information and data relating to private individuals without the latter's knowledge or consent." She warned in the report that any company that complies with such demands "risks being complicit in or otherwise involved with human rights abuses."
