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Did the UN General Assembly Let the US Entirely Off the Hook on the Right to Privacy?

In early December the UN General Assembly will adopt, almost certainly by consensus, a resolution on “the right to privacy in the digital age.”  Intensive negotiations at the UN over the past few weeks have succeeded in producing a rather bland and formulaic text that seems to give the United States almost all that it could have wished for under the circumstances.  Little wonder then that the official US statement in response to the adoption of the draft by the UNGA’s Third Committee last week expressed pleasure, appreciation, applause and thanks.  Not to mention giving the US the opportunity to proclaim its longstanding support for privacy rights, its complete compliance with all applicable international and domestic laws, and its deep attachment to ensuring that human rights defenders the world over can use the internet to hold governments accountable.

How should we view this outcome?  Is it a complete copout on the part of those who purported to be so angered by the mass surveillance undertaken by the NSA and facilitated by its close allies?  What happened to the outrage expressed by Germany’s Chancellor, Angela Merkel, and Brazil’s President, Dilma Rousseff, at having their personal communications invaded by US surveillance efforts?  Is a resolution of this kind, drafted and jointly sponsored by Brazil and Germany, an adequate response by the international community to what the ACLU has termed “dragnet surveillance”?

UN watchers are notorious optimists – some would say they have no alternative, if despair is not to set in!  But there are actually good grounds to welcome this outcome, provided that it is seen as the start of a lengthy process and that it is not permitted to obscure the need for action on other fronts at the same time.  So, what is the good news?

First, the resolution unequivocally endorses (“welcomes” in UN-speak) the most detailed and comprehensive statement to date of the principles that should apply in protecting human rights from state surveillance.  That report, presented in April to the UN Human Rights Council by Frank La Rue, the Special Rapporteur on the right to freedom of opinion and expression, covers privacy as well as those specific rights.  If its analysis is the basis for future international efforts in this area, the blandness of the UNGA resolution will be a small price to pay.

Second, by basing itself on the formulations of the right to privacy included in both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, the resolution implicitly rejects the US line that privacy rights derive only from a specific treaty which the US in turn insists has no extra-territorial implications.  Whatever approach one takes to the longstanding argument over that issue in relation to the ICCPR the same cannot be said for the UDHR.

Third, the resolution puts on record states’ concern that surveillance, including when undertaken extraterritorially, can negatively impact human rights.  This again counteracts the claim by the US that it is under no human rights-based extraterritorial obligations in its surveillance activities.

Fourth, by calling upon states both to respect and protect, the resolution uses the technical terms that signify both an obligation on the state to desist from violating the relevant rights as well as an obligation to ensure that it provides protection against violations by other actors.  Thus, in this case, private actors such as Google, Yahoo, Microsoft and others, are covered.  It means that the US must both regulate these private actors so as to ensure that they do not violate privacy rights and must, of course, desist from inducing them to do so.

Finally, the resolution follows the well-known diplomatic path of using a relatively unproblematic text as the means for launching a process which should develop its own momentum.  It enables the UN High Commissioner for Human Rights to prepare a major study, and it ensures that the debate will continue to be on the formal agenda of the UNGA for at least the next year.

One of the biggest challenges will be to move from examining these issues in the abstract, as even the Special Rapporteur’s report tends to do, to looking explicitly at the practices of the US and its key intelligence partners (“the Five Eyes”).  Espionage is located in a determinedly grey area of international law and most states are very happy most of the time to pretend that it doesn’t happen, and when it does that it is not meaningfully regulated by law.  Until this dimension is actually put on the table and discussed, supposed regulatory efforts will remain partial at best and largely ineffectual.

An important potential precedent in this respect is the response by Indonesia’s President, Susilo Bambang Yudhoyono, to revelations of Australia’s spying on his personal communications (and his wife’s).  He has proposed that the two countries draw up a “code of conduct” regulating such activities.  The code would be signed by both the Indonesian President and the Australian Prime Minister and its future implementation would be subject to review.  Discussions of this type are likely to be resisted by Australia precisely because they would require addressing the legal framework that governs at least some espionage activities.  But, if Indonesia can persist, it would compel a more open discussion of the issues and assumptions that underlie the claims by the US and its mega-spy allies that mass surveillance is both legal and justifiable for reasons of national security.

[Editor's note: Coming soon on Just Security, Ryan Goodman blog post: "Is the Draft UN Resolution on the Right to Privacy a Trojan Horse for Libertarians”]

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About the Author

is John Norton Pomeroy Professor of Law at New York University Law School, and was UN Special Rapporteur on extrajudicial executions (2004-10).