November 21, 2013
The United States is silently watering down the text of an anti-spying UN resolution introduced by Germany and Brazil in order to ensure any extra-territorial violation of online privacy remains legal, according to a document obtained by The Cable.
According to a government document obtained by the publication , the US has circulated a confidential communique entitled “Right to Privacy in the Digital Age – U.S. Redlines.”
In it, Washington highlights the US objectives in negotiations currently underway at the United Nations and calls for changing the Brazilian and German text so “that references to privacy rights are referring explicitly to States’ obligations under ICCPR and remove suggestion that such obligations apply extraterritorially.”
Washington is also calling for its allies to support amendments that would weaken a UN draft resolution by Brazil and Germany aimed at constraining internet surveillance by the National Security Agency and other intelligence agencies.
The United States claims that it wants to limit the focus to illegal surveillance.
“Recall that the USG’s [U.S. government’s] collection activities that have been disclosed are lawful collections done in a manner protective of privacy rights,” the document states. “So a paragraph expressing concern about illegal surveillance is one with which we would agree.”
Diplomatic sources have also told The Cable that Washington is worried that extraterritorial human rights could hinder the US effort to pursue international terrorists.
There is no extraterritorial obligation on states “to comply with human rights,” one diplomatic source told The Cable. “The obligation is on states to uphold the human rights of citizens within their territory and areas of their jurisdictions.”
Germany and Brazil submitted a draft resolution to the UN General Assembly earlier in November.
The text calls for an end to excessive electronic surveillance, data collection, and other snooping techniques, in response to recent revelations of US mass surveillance programs.
The text of the resolution asks the world community to declare that it is “deeply concerned at human rights violations and abuses that may result from the conduct of any surveillance of communications, including extraterritorial surveillance of communications.”
The circulated draft, that is being discussed in the UN’s third Committee, urges member states “to take measures to put an end to violations of these rights and to create the conditions to prevent such violations, including by ensuring that relevant national legislation complies with their obligations under international human rights law.”
The Brazilian and German proposal seeks to apply the right to privacy to online communications under the International Covenant on Civil and Political Rights (ICCPR).
It acknowledges that while public safety may “justify the gathering and protection of certain sensitive information,” nations “must ensure full compliance” with international human rights laws. The resolution is expected to be adopted next week at the UN.
In public, the US claims to affirm privacy rights. “The United States takes very seriously our international legal obligations, including those under the International Covenant on Civil and Political Rights,” Kurtis Cooper, a spokesman for the US mission to the UN, said in an email to the Cable. “We have been actively and constructively negotiating to ensure that the resolution promotes human rights and is consistent with those obligations.”
Yet behind the scenes, The Cable alleges US diplomatic efforts are aimed at killing “extraterritorial surveillance” provision of the Brazilian and German draft. The publication claims that American negotiators have been pressing their case behind the scenes through their allies.
According to one diplomat, “the United States has been very much in the backseat,” leaving it to its allies, Australia, Britain, and Canada, The Cable writes.
“They want to be able to say ‘we haven’t broken the law, we’re not breaking the law, and we won’t break the law,'” Dinah PoKempner, the general counsel for Human Rights Watch told the publication. She says the US wants to maintain its ability “to scoop up anything it wants through the massive surveillance of foreigners because we have no legal obligations.”