The following piece first appeared in the Huffington Post.
Yesterday, the U.N. High Commissioner for Human Rights, Navi Pillay, released her report, “The Right to Privacy in the Digital Age,” and at a press conference, she applied the report’s conclusions to the case of U.S. whistleblower Edward Snowden. Pillay expressed the opinion that the public “owes a great deal” to Snowden for revealing the extent to which governments have violated the individual human right to privacy, as established in the body of international law, for which she is responsible. She went on to say that, “Those who disclose human rights violations should be protected: we need them.”
The perspective of the United Nations on the Snowden disclosures is an important development in the debate about government and corporate surveillance, both here and abroad. The report states clearly and repeatedly that wholesale surveillance of populations violates the principle of the human right to privacy. This conclusion, argued in reference to International Covenant on Civil and Political Rights, Article 17, trumps the self-obsessed discussion about what is legal in this country and what isn’t.
Many of us have heard the thought-free opinion about Snowden’s actions that references U.S. law as if it were divine (although some people may still believe that U.S. law is God’s will, history suggests that they will soon be extinct, like their antecedent, the Queen of France). We’re referring to the “Snowden-broke-the-law-and-must-be-punished“ mindlessness.
The conclusions reached by the U.N. High Commissioner put an end to the American debates about the meaning of the Fourth Amendment as a protection against unreasonable searches and seizures in the context of electronic data. The International Covenant cited in the report is pretty explicit.
No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
Now, although this statement is straightforward, a U.S. Justice Department lawyer who is determined to charge Snowden with espionage for revealing that the U.S. government interferes with the privacy of the multitudes, will spot that phrase ‘arbitrary and unlawful’ as a promising loophole. But the U.N. High Commissioner covered that base, too.
Interference authorized by States can only take place on the basis of law, which itself must comply with the provisions, aims and objectives of the Covenant. In other words, interference that is permissible under national law may nonetheless be “unlawful” if that national law is in conflict with the provisions of the International Covenant on Civil and Political Rights (emphasis added).
In clarifying the legitimacy and scope of the qualifiers ‘arbitrary and unlawful’ in Article 17, the U.N. Human Rights Council concludes that a surveillance program can only be legitimately conducted if it is based on published law and complies with a country’s own constitution and with international law. Programs, therefore, based on secret laws, or held to be unconstitutional by the country’s own courts or in violation of the essence of the right protected by the Covenant, are thus both arbitrary and unlawful, and we should not be subjected to them.
[S]ecret rules and secret interpretations – even secret judicial interpretations – of law do not have the necessary qualities of “law”.
Nor does the Human Rights Commissioner accept the use of third parties, such as private companies, to conduct surveillance or hold data as legitimate. And technically acceptable legal maneuvers that use country A’s intelligence agencies to perform surveillance activities prohibited by law in country B are also denounced by the Council:
Reportedly, some Governments have operated a transnational network of intelligence agencies through interlocking legal loopholes, involving the coordination of surveillance practice to outflank the protections provided by domestic legal regimes.
So, to be legitimate a surveillance program must conform to the essence of the right to privacy articulated by the Covenant, must be based on publicly accessible law (and legal interpretations) and cannot be outsourced for the purpose of avoiding accountability.
The United States is a signatory nation to the International Covenant of Civil and Political Rights and ratified the principles in June 1992. The report of the High Commissioner puts the U.S. government in violation of the definitive interpretation of international political and civil rights on the issue of privacy, surveillance and related whistleblowing.
Bea Edwards is Executive & International Director of the Government Accountability Project, the nation’s leading whistleblower protection organization. She is also the author of The Rise of the American Corporate Security State.