Better Privacy Protections Key to US Foreign Policy Coherence

For all its interest in promoting human rights around the world, you’d think the United States would be more sensitive to the ways its own surveillance policies undermine those very rights.

Over the last few years, U.S. officials say they have spent more than $125 million to advance Internet freedom, which the State Department describes as a “foreign policy priority.” The U.S. rightly links Internet freedom with the freedoms of expression, peaceful assembly, and association, as well as with the work of human rights defenders. It makes sense, therefore, that the U.S. also actively funds human rights defenders, and calls out other governments for mistreating them.

Yet surveillance conducted by the U.S. government—some of it unconstitutional and contrary to international human rights law—compromises Internet freedom, undermines the rights the government seeks to promote, and directly harms human rights defenders.

Two weeks ago, the ACLU filed a lawsuit challenging the NSA’s “upstream” surveillance, which involves tapping the Internet backbone to copy and search countless communications as they enter and leave the country. Among the plaintiffs in that suit are human rights groups, including Human Rights Watch and Amnesty International. Both organizations send researchers around the world to document and report on human rights abuses, often in conflict zones or countries with oppressive governments. Both rely on local human rights defenders to help collect evidence, and both often solicit the testimony of victims and survivors of atrocities.

Upstream surveillance undermines this critical work by raising the costs of communicating securely and exposing and frightening away sources. Those sources are understandably reluctant to provide sensitive information when they know it can easily be collected by the U.S. and shared with other governments—sometimes the very governments they have spoken out against.

Today, we are releasing a report that analyzes state obligations to protect privacy under the International Covenant on Civil and Political Rights, or, a treaty that imposes legal obligations on the U.S. and many other signatories. Our report urges the U.N. body that monitors state compliance with the ICCPR, the Human Rights Committee, to update its authoritative analysis of the right to privacy.

This analysis, called “General Comment 16,” was published in 1988, and some of its standards have fallen behind the times. Since its publication, we have become so heavily reliant on information technologies—cell phones, the Internet and more—that there now exist detailed digital records of our daily lives. Meanwhile, government capacities to gather, store, and analyze those records have grown exponentially.

The U.N. calls this the “digital age.” The State Department calls it “an inflection point in human history.” But whatever label we use, this new reality explains why we’re calling on the Human Rights Committee to establish modern standards that give governments much needed guidance on how to meet their privacy-related human rights obligations.

Our report is designed to help the committee revisit General Comment 16. It draws on a broad range of existing human rights laws and standards to collect and organize relevant data points, distilling the requirements they reflect. And, until the committee updates its analysis, our report will also help human rights advocates in their continuing efforts to ensure that their governments respect the international human right to privacy.

Despite its lofty rhetoric about promoting Internet freedom and associated human rights, the U.S. needs a new general comment on privacy as much as anyone. It has resisted modernizing international privacy protection standards in the same statements it uses to reaffirm its commitments to privacy rights. It simultaneously funds secure communications technology and weakens the security of such technology. Its surveillance programs have had chilling effects here at home on the exact rights it aims to promote around the world. Now it’s being sued by major human rights defenders for hindering their work, even as it trumpets its commitment to their cause.

Privacy lies at the center of this tangle of contradictions. Of course, we believe the U.S. should respect the human right to privacy because it’s legally obligated to do so. But if that’s not a good enough reason, there is another: It’s the first step toward a coherent foreign policy on human rights.