The United States and its key intelligence allies Germany and Brazil are secretly waging a war over the universal human right to online privacy.
Working behind the scenes at the United Nations General Assembly are two opposing heavyweights of the international community. In one corner, the U.S. seeks to impose new laws to National Security Agency that extend its power to track foreign nations. Standing in opposition, Germany and Brazil want to thwart this with a draft resolution that places constraints on unchecked Internet surveillance by the NSA and other foreign intelligence services.
The diplomatic schism between the U.S. and allied countries in Europe and Latin America continues to grow. Leading up to the U.N. General Assembly, Sen. Dianne Feinstein (D-Calif.) pushed through the Senate Intelligence Committee an 11-4 vote on a bill that makes it legal to collect data from Americans using phone records while also extending the agency’s authority to track foreign nationals who enter the United States.
Despite the huge misgivings of Sen.James Sensenbrenner (R-Wisc), who proposed NSA reforms, and increasing revelations of the U.S. spying on 35 world leaders that has caused outrage and condemnation by German Chancellor Angela Merkel and Brazilian President Dilma Roussef, the bill passed with ease.
Feinstein’s bill effectively transforms into law the NSA’s internal policies for the bulk collection of data from phones, as well as codifying the ability of the NSA to search its troves of foreign phone and email communications for information, and also permitting law enforcement agencies to search the vast databases.
The bill does add some new laws to the Foreign Intelligence Surveillance Court, which oversees many of the NSA’s programs. One provision of the bill expands the agency’s power, allowing it to continue targeting the cellphones of “roamers,” or foreigners who enter the United States, for up to 72 hours. Such surveillance technically requires a warrant but not under this bill.
Wary of the U.S. bill and diminishing checks and balances curtailing NSA surveillance, Germany and Brazil took their concerns to the UN General Assembly. Their draft resolution seeks to use the right to privacy, which is an integral part of the International Covenant on Civil and Political Rights (ICCPR), and apply it to online communications. Their proposal would allow individuals the right to privacy that cannot be subjected to arbitrary or unlawful interference.
It also states that “While public safety may justify the gathering and protection of certain sensitive information,” nations must ensure full compliance with international human rights laws.”
And so a diplomatic battle has played out, with U.S. representatives pushing hard to kill a provision of the Brazilian and German draft resolution that refers to “extraterritorial surveillance.” This provision denies U.S. surveillance that overreaching human rights. It stops the mass interception of communications, personal information, and metadata that may constitute a violation of human rights.
The biggest problem this draft presents to the U.S. is that the Covenant on Civil and Political Rights places an individual right to privacy above unchecked, warrantless state security issues, which will make it hard for the U.S to preserve the right to spy overseas.
Brazil’s Ambassador Antonio de Aguiar Patriota said this about the draft resolution: “In the absence of the right to privacy, there can be no true freedom of opinion and expression, and no effective democracy. Brazil believes it is crucial for the international community to engage in a serious in-depth debate on how to uphold certain fundamental rights of human beings in the digital-age, including in light of concerns with national security and criminal activity.”
Senator Feinstein’s NSA bill will go before the House Judiciary Committee, where it should face considerably more opposition than before. From the Senate, Sen. Patrick Leahy (D-Vt) continues his charge against it, as he put forward his own version of NSA reform. But critics believe both bills’ attempts to add reforms to the NSA are inadequate.
“The Feinstein bill is terrible and would make things worse. I think the Leahy-Sensenbrenner bill begins to address some of the problems,” said Jennifer Granick, director of civil liberties at the Stanford Center for Internet and Society.
But neither bill will address the NSA’s infiltration of Yahoo and Google data centers worldwide, which could provide the agency a pathway to collect Americans’ communications.
On Dec 1 , the draft resolution of online privacy will be put to a ballot in the 193-member of UN General Assembly. If passed, it may influence U.S surveillance laws.