ILI Student Blog

Month: September 2013

  • Is freedom from cross-border surveillance a human right?

    Among the revelations about NSA surveillance this summer was the news that the United States engaged in massive surveillance of foreign governments and citizens, including embassies, delegations, and politicians of its allies and trading partners, and the offices of the European Union and the United Nations.

    These revelations raise questions about the status of electronic surveillance under international law. In the United States, the Foreign Intelligence Surveillance Act authorizes the government to intercept the communications of foreign targets (any “non-United States Person”) without a court order, at the authorization of the Attorney General. Other countries have no legal restrictions at all on electronic surveillance outside their own borders, or have adopted extraterritorial legal frameworks to permit their governments to engage in foreign communications surveillance of other countries.

    Recently, however, there is a trend to see communications surveillance as a matter of human rights. Under this view, might cross-border espionage by a state be considered to be a violation of international human rights law?

    Conventional wisdom viewed international espionage at peacetime as unregulated by international law. To be sure, countries that conduct espionage on foreign soil violate the domestic laws of those countries, and acts of espionage are viewed as “unfriendly acts” among nations. However, there are currently no international customary norms or treaties forbidding such actions. It is argue that the very clandestine nature of espionage places it beyond the power of international law to regulate.

    However, earlier this year, the UN Human Rights Council received the “Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue”.  The report ties the practice of communications surveillance, including foreign intelligence surveillance, to the human rights of privacy and freedom of opinion and expression. Recently, a coalition of non-governmental organizations issued a declaration of “International Principles on the Application of Human Rights to Communications Surveillance”, which ties surveillance to human dignity, the freedoms of expression and associations, and the right to privacy, but treats all surveillance activities equally and does not draw a distinction between foreign and domestic surveillance.

    It is hard to predict what affect, if any, will the trend to regard unlawful electronic surveillance as a matter of human rights have on foreign intelligence gathering under international law. Both the report of the HRC Special Rapporteur and the International Principles do not suggest any international measures against foreign surveillance, and confine their recommendations to countries’ domestic laws. Nevertheless, viewing mass electronic surveillance across borders as a violation of international human rights law might add weight to the diplomatic calls on the United States and its intelligence-sharing allies to limit their dragnet sweep of the world’s communications.

     

    References:

     

    Information on US surveillance activities against foreign counties:

    http://www.washingtonpost.com/blogs/the-switch/wp/2013/09/17/the-nsas-global-spying-operation-in-one-map/

    http://www.theguardian.com/world/2013/jun/08/nsa-boundless-informant-global-datamining

    http://www.spiegel.de/international/world/secret-nsa-documents-show-how-the-us-spies-on-europe-and-the-un-a-918625.html

    On the international law of espionage:

    A. John Radsan, The Unresolved Equation of Espionage and International Law, 28 Mich. J. Int’l L. 595 (2006-2007).

    Geoffrey B. Demarest, Espionage in International Law, 24 Denv. J. Int’l L. & Pol’y 321(1995).

     

    Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue

    http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session23/A.HRC.23.40_EN.pdf

     

    International Principles on the Application of Human Rights to Communications Surveillance.

    https://en.necessaryandproportionate.org/text

  • PRG – Overview of Legal Implications of NSA Spying

    Post-911 laws and FISA court developments. PRG Discussion on 9/18/13

    FISA Act governs gathering of data about foreign actors, set up in wake of Watergate.  Created framework for data collection and court review by FISA courts.   With the Patriot Act, push to expand powers and reach of a number of laws.  Patriot Act expanded FBI ability to send out administrative letters to collect information without court order and created roving wiretaps.  Legalized “sneak and peek” searches without immediate notification to target.

    Section 215 of the Patriot Act lowered the threshhold for search to any situation where collecting foreign intelligence is “a purpose” rather than just the only purpose.  16 provisions were set to sunset in 2005, but 14 were made permanent and two were reextended to 2015.

    Other key event was Bush Administration setting up wideranging wiretapping program and Section 702 of FISA creating official rules for targeting persons outside the United States.  These will be coming up for renewal in coming years.

    FISA court created under 1978 Act; 11 district court judges appointed by Chief Justice of the US Supreme Court.  Most opinions have been secret. Following expansion of requests to become more programmatic, FISA has been issuing long but secret opinions creating precedents for operation of the FISA court.    Existing Supreme Court precedent has been declared to make metadata given to a third party not subject to Constitutional protection.   34,000 surveillance requests since FISA created; 11 have been rejected.

    Not an adversarial proceeding with no actor representing person or groups whose data is to be accessed.  In many cases, information collected via FISA is then tracked down through other sources by FBI to “cover the tracks” so that the fact that FISA was used does not have to be presented in later public court proceedings.

    Anyone on US soil is not covered by FISA but non-citizens not on US soil have no protections under the law.

    Question raised about whether revelations about NSA were shocking because they revealed the extent of surveillance allowed by the law or whether there are real violations of US law.  A related question is whether the surveillance violates international law.

    Section 215 now allows collection of “any tangible thing”, which has been interpreting to mean whole telecommunications databases.  Restriction on collection if search is “solely based on First Amendment activities” which is not very restrictive if FBI can find any other reason to justify such a search.   Old law restricted access to specific information about a suspect person has become access to any data “relevant” to an authorized investigation. Minimization procedures are limited by fact that data retention allowed to “understand foreign intelligence” or related to a crime.

    Section 702 allows AG and Director of National Intelligence can set up surveillance program with no court overview once it’s established. Collection of data on US persons is allows as long as it is not intentionally targeting US persons. Statute says government does not have to specify who they want to target or where they want to look in any specific surveillance operation approved by a FISA proceeding.

     

  • Setting up Accounts at PRG

    Hi all– If you don’t have an account on the blog yet, please register at the link at the bottom of this post.

    If you have a twitter account that is devoted primarily to privacy-related tweets, please list it in comments in this post.

    For others, add #nyuprg to your tweets and we’ll figure out how to start incorporating them into the page.

  • New York’s E-ZPass: We’re watching you (Salon.com)

    Courtesy of Salon‘s Andrew Leonard:

    “Let’s file this one under the category of things we were reasonably sure were happening already, but are still greatly annoyed to have confirmed. New York City, reports Kashmir Hall in Forbes, has been tracking the movements of cars equipped with E-ZPass RFID tags all over the city — not just at the toll booths for which New York drivers presumably purchased their E-ZPasses to get through.

    The surveillance was uncovered when an electronics tinkerer who styles himself  ”Puking Money” hacked his E-ZPass to, no joke, go “moo cow” each time it was pinged by a reader.”

    Click through for the grizzly details.