Unnecessary and Disproportionate: How the NSA Violates International Human Rights Standards
by Katitza Rodriguez and David Greene
(Cartoon: El Spectador)
Even before Ed Snowden leaked his first document, human rights lawyers and activists were concerned about law enforcement and intelligence agencies spying on the digital world. One of the tools developed to tackle those concerns was the development of the International Principles on the Application of Human Rights to Communications Surveillance (the "Necessary and Proportionate Principles"). This set of principles was intended to guide governments in understanding how new surveillance technologies eat away at fundamental freedoms, and outlined how communications surveillance can be conducted consistent with human rights obligations. Furthermore, the Necessary and Proportionate Principles act as a resource for citizens—used to compare new tools of state surveillance to global expectations of privacy and due process.
We are now able to look at how the NSA’s mass surveillance programs, which we have learned about in the past year, fare when compared to the Necessary and Proportionate Principles.
As you might expect, the NSA programs do not fare well. To mark the first anniversary of the Snowden disclosures, we are releasing Unnecessary and Disproportionate, which details how some of the NSA spying operations violate both human rights standards and the Necessary and Proportionate Principles.
Some of the conclusions are as follows:
More broadly, the United States justifies the lawfulness of its communications surveillance by reference to distinctions that, considering modern communications technology, are irrelevant to truly protecting privacy in a modern society. The US relies on the outmoded distinction between "content" and "metadata," falsely contending that the latter does not reveal private facts about an individual. The US also contends that the collection of data is not surveillance—it argues, contrary to both international law and the Principles, that an individual’s privacy rights are not infringed as long as her communications data are not analyzed by a human being. It’s clear that the practice of digital surveillance by the United States has overrun the bounds of human rights standards. What our paper hopes to show is exactly where the country has crossed the line, and how its own politicians and the international community might rein it back.
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