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Hi all – if anyone’s interested, the (perhaps too cryptic) slides which accompanied my talk last week are available below. Many thanks for everyone’s feedback – more is certainly welcome!

PRGPresentation

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

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.

This story courtesy of Akiva Miller:

“Reuters reported yesterday that the Drug Enforcement Administration (DEA) has been starting criminal investigations of drug-related offenses based on information obtained from  from intelligence intercepts, wiretaps, informants and a massive database of telephone records – information that usually cannot be used in criminal investigations not related to national security matters. The DEA agents were directed to “recreate” the investigative trail to effectively cover up where the information originated. This practice violates defendants’ constitutional rights to a fair trial. http://www.reuters.com/article/2013/08/05/us-dea-sod-idUSBRE97409R20130805

This Reuters context piece helps explain how this practice differs from the NSA Surveillance program, and is a far worse violation of civil rights: http://www.reuters.com/article/2013/08/05/us-dea-sod-nsa-idUSBRE9740AI20130805

Meanwhile, USA Today reported that the Justice Department is now reviewing the DEA’s techniques:  http://www.usatoday.com/story/news/nation/2013/08/05/justice-dea-special-operations-shield/2620439/

This revelation exposes how surveillance practices are going beyond the narrow realm of national security needs and are increasingly being employed against Americans for ordinary law enforcement purposes – the very realm where civil rights are vital safeguards against agency violation. Now that unlawful surveillance has been exposed in the fairly controversial area of drug enforcement, one can imagine the reaction if it turns out other agencies are using similar tactics: How would businesses react if the IRS were illegally obtaining their phone records, and then started a “random” audit on its secret surveillance target? Or how would gun rights supporters feel if the ATF Bureau were listening to phone conversations and arresting unregistered gun owners claiming “reliable informants” had led them to their targets? It wil also be interesting to see how this will affect the convictions of drug-related charges who may have been victims of these tactics. ”

 

Position 1: Snowden is a whistleblower and what the government is doing is illegal: http://www.whistleblower-insider.com/the-simmering-storm-over-americas-secret-surveillance-court/

Position 2: Snowden leaked classified documents improperly, and in fact, there are many controls and restrictions governing surveillance: See this talk by  Robert Litt (General Counsel of the Office of the Director of National Intelligenceat) at a recent a Brookings event http://www.c-spanvideo.org/program/GovernmentInte

http://www.aclu.org/blog/technology-and-liberty-national-security/police-documents-license-plate-scanners-reveal-mass

 

26000 pages of law enforcement data reveal: low hit rate, lots of variation across states and cities with regard to data retention policies.

Possibly, because the idea is faulty. Something which this program in Texas is experiencing. Though, they seem to be replacing RFID with hundreds (!) of surveillance cameras. And why? To enjoy more federal funding.

See the following link