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Surveillance and International Law

Special Rapporteurs Frank LaRue and Catalina Botero

As the drama continues over Edward Snowden’s whereabouts and destination, one thing is becoming clear: the world is not wild about the NSA surveillance programs he has revealed.

President Obama’s tense meetings with Angela Merkel and Vladimir Putin last week; the decision of Hong Kong and Chinese authorities to let Snowden leave Hong Kong rather than face extradition to the U.S.; the hands-off attitude of Russian authorities as Snowden, still in the transit area of the Moscow airport, decides his next move; the apparent collaboration of Wikileaks and the Ecuadorian government in arranging travel documents—all of these suggest that revelations that the United States is conducting global dragnet surveillance have hardly enhanced our country’s ability to win friends and influence people around the world. Yes, there is a fair share of geopolitical jockeying in all of this, and opportunism, and schadenfreude, even (how rich a moment for Russia and China, long the targets of U.S. criticism on digital freedoms!). But there is also a sense, emphatic and widely-held in both friendly and not-so-friendly states, that the United States is operating outside of the legal frameworks and moral principles it espouses at home and internationally.

The most powerful articulation of this sentiment so far is this remarkable "Joint Declaration on Surveillance Programs and Their Impact on Freedom of Expression" which Frank LaRue, the Special Rapporteur for Freedom of Expression at the United Nations, and Catalina Botero, the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, released late last week.

Reacting specifically to the revelations over the scope of the NSA surveillance programs, the rapporteurs were moved, they wrote, to “prepare and disseminate this Joint Declaration containing the basic principles of international law that guide the design and implementation of surveillance programs intended to combat terrorism and defend national security.”

There is, as that phrasing specifically aims to remind us, a body of existing international law relating to the protection of human rights in the context of national security and anti-terrorism operations. It is a body of law that the United States has helped shape and promote; it grows out of the experience of many countries that have faced the challenges posed by terrorism, and it extends in part from the understanding, gathered from those experiences, that national security regimes and counterterrorism efforts, freed from traditional checks and balances, can themselves compromise or threaten essential human rights.

The entire document is a must read: it should serve as the guide for policy discussions going forward; it can, and should, also serve as a touchtone for an independent, nonpartisan, and comprehensive public review of these surveillance programs in the United States. Here are a just few of many key sentences in the rapporteurs’ declaration.

On the need to place limits on surveillance programs:

•    “The rights to privacy and to the free circulation of thought and information are protected under international human rights law.”

•    “When national security is invoked as a reason for the surveillance of correspondence and personal information, the law must clearly specify the criteria to be used for determining the cases in which surveillance is legitimate.”

•    “Any surveillance of communications and interference with privacy that exceeds what is stipulated by law, has ends that differ from those which the law permits, or is carried out clandestinely must be harshly punished. Such illegitimate interference includes actions taken for political reasons against journalists and independent media.”

On the duties of public accountability and transparency:

•    “[T]he law must ensure that the public can access information on private communications surveillance programs, including their scope and any regulation that may be in place to guarantee that they cannot be used arbitrarily.

•    “The state has the obligation to divulge information regarding the existence of illegal programs of surveillance of private communication broadly.”

And concerning protections from sanctions for the disclosure of confidential information:

•    “Under no circumstances may journalists, members of the media, or members of civil society who have access to and distribute classified information on these types of surveillance program because they consider [it] to be in the public interest be subjected to subsequent punishment.”

•    “[A] person with a connection to the state who, having a legal obligation to keep certain information confidential, only discloses to the public information that she reasonably believe to prove the commission of human rights violations (“whistleblowers”) shall not be subjected to legal, administrative or disciplinary sanctions as long as that person has acted in good faith, pursuant to international standards on the subject.

As events unfold over the next several weeks, we will be hearing more and more international voices weighing in on how the actions of the United States are being read around the world (and we will be doing our best to highlight some of those voices here). Not all of the criticism will be helpful or apt; plenty of prejudices will be on display, many axes will be ground. But this powerful declaration by two internationally-appointed watchdogs of freedom of expression should serve as a reminder that much of the criticism the United States is receiving arises within a framework of a commonly-held set of principles and international laws—laws that we have helped create and claim to represent. We would do well to listen, and better to act.

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