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US working to scuttle UN online privacy designation

– The United States and its key intelligence allies are quietly working behind the scenes to kneecap a mounting movement in the United Nations to promote a universal human right to online privacy, according to diplomatic sources and an internal American government document obtained by Foreign Policy.

The diplomatic battle is playing out in an obscure U.N. General Assembly committee that is considering a proposal by Brazil and Germany to place constraints on unchecked Internet surveillance by the National Security Agency and other foreign intelligence services. American representatives have made it clear that they won’t tolerate such checks on their global surveillance network.

The initiative seeks to apply the right to privacy, enshrined in the International Covenant on Civil and Political Rights, to online communications. Their proposal, first revealed by FP, affirms a “right to privacy that is not to be subjected to arbitrary or unlawful interference with their privacy, family, home, or correspondence.” It notes that while public safety may “justify the gathering and protection of certain sensitive information,” nations “must ensure full compliance” with international human rights laws.

A draft of the resolution, obtained by FP, calls on states to “to respect and protect the right to privacy,” asserting that the “same rights that people have offline must also be protected online, including the right to privacy.”

Publicly, U.S. representatives say they’re open to an affirmation of privacy rights. But privately, American diplomats are pushing hard to kill a provision of the Brazilian and German draft which states that “extraterritorial surveillance” and mass interception of communications, personal information, and metadata may constitute a violation of human rights.

The United States has circulated to its allies a confidential paper highlighting American objectives in the negotiations. It calls for changing the Brazilian and German text so “that references to privacy rights are referring explicitly to States’ obligations under ICCPR and remove suggestion that such obligations apply extraterritorially.” In other words: America wants to make sure it preserves the right to spy overseas.

The U.S. paper also calls on governments to promote amendments that would weaken Brazil’s and Germany’s contention that some “highly intrusive” acts of online espionage may constitute a violation of freedom of expression. Instead, the United States wants to limit the focus to illegal surveillance – which the American government claims it never, ever does.

The resolution, like most General Assembly decisions, is neither legally binding nor enforceable by any international court. But international lawyers say it creates the basis for an international consensus that over time will make it harder and harder for the United States to argue that its mass collection of foreigners’ data is lawful and in conformity with human rights norms.

“They want to be able to say ‘we haven’t broken the law, we’re not breaking the law, and we won’t break the law,’” said Dinah PoKempner, the general counsel for Human Rights Watch, who has been tracking the negotiations. The United States, she added, wants to be able to maintain that “we have the freedom to scoop up anything we want through the massive surveillance of foreigners because we have no legal obligations.”

The U.S. negotiators have been pressing their case behind the scenes, raising concerns that the assertion of extraterritorial human rights could constrain America’s effort to go after international terrorists. But Washington has remained relatively muted about their concerns in the U.N. negotiating sessions.

There is no extraterritorial obligation on states “to comply with human rights,” explained one diplomat who supports the U.S. position. “The obligation is on states to uphold the human rights of citizens within their territory and areas of their jurisdictions.”

The position, according to Jamil Dakwar, director of the American Civil Liberties Union’s Human Rights Program, has little international backing. The International Court of Justice, the U.N. Human Rights Committee and the European Court have all asserted that states have an obligation to comply with human rights laws beyond their own borders, he noted

Both PoKempner and Dakwar suggested that courts may also judge that U.S. dominance of the Internet places special obligations on it to ensure the protection of users’ rights.

“It’s clear that when the United States is conducting surveillance, these decisions and operations start in the United States, the servers are at NSA headquarters, and the capabilities are mainly in the United States,” Dakwar said. “To argue that they have no human rights obligations overseas is dangerous because it sends a message that there is void in terms of human rights protection outside countries’ territory. It’s going back to the idea that you can create a legal black hole where there is no applicable law.” In an effort to address the concerns of the U.S. and its allies, Brazil and Germany agreed to soften the language suggesting that mass surveillance may constitute a violation of human rights. Instead, it states deep “concern at the negative impact” that extraterritorial surveillance “may have on the exercise of and enjoyment of human rights.” The U.S., however, has not yet indicated it would support the revised proposal.

The concession “is regrettable. But it’s not the end of the battle by any means,” said Human Rights Watch’s PoKempner. She added that there will soon be another opportunity to corral America’s spies: a U.N. discussion on possible human rights violations as a result of extraterritorial surveillance will soon be taken up by the U.N. High commissioner.

Colum Lynch is a writer for Foreign Policy.

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