President’s privacy proposals short on substance

MEXICO CITY—A few years ago, I met with a Honduran military officer to talk about his unit’s connection with death squads.  We arranged the meeting through an intermediary, with several last-minute changes in location.  It was understandable why he was so cautious:  when I finally did see him, he spoke for several hours about the abductions, acts of torture, and killings he’d witnessed, and perhaps participated in.

In the course of my work with Amnesty International, I routinely speak with victims of human rights abuses, activists, and public officials around the world.  They’re willing to talk to me, even when doing so carries significant risk, because they trust that I won’t unnecessarily reveal their identities or needlessly disclose confidential information.

But, as we now know, there’s no way I can guarantee that details of those meetings and even the content of our communications won’t be captured in some way by U.S. surveillance operations, stored indefinitely, and potentially shared with other governments.

In the wrong hands, today or years from now, the accounts I’ve gathered could destroy careers, prompt acts of persecution, and even endanger the lives of those with whom I’ve worked.  That’s true whether I’m examining extrajudicial executions in Central America, police abuses in Brazil, forced evictions in Afghanistan, or the day-to-day lives of gay, lesbian, bisexual, and transgender people in Cameroon or Uganda.

So when President Obama announced changes last week to the way the United States conducts surveillance, I took time out from meetings with Mexican human rights groups to hear what he had to say.  I was prepared to be disappointed, and I was.

True, the president went farther than I expected in recognising the need for greater transparency and protection for the privacy rights of people around the world.  He announced support for the creation of a panel of outside advocates for the Foreign Intelligence Surveillance Court, which oversees some US surveillance programs, and partial declassification of that court’s rulings.

In a move that is of particular interest to Amnesty International and those we work with, Obama also announced the development of guidelines that would apply privacy safeguards to noncitizens and citizens alike to “the maximum extent feasible consistent with the national security.”

That’s good news, as far as it goes.  There’s no principled basis for the United States to allow its officials to carry out acts abroad that are forbidden at home.  To the contrary, the United States has treaty obligations to respect the privacy rights of everyone, wherever it operates.

And the distinction between domestic and foreign communications doesn’t really hold in the twenty-first century.

Just as the phone calls I make and the emails I send from wherever I am in the world are likely to be routed through the United States, many calls and emails between U.S. residents are carried by global networks, meaning that they’re currently fair game for U.S. spy agencies.  It’s not clear how many purely domestic communications are subject to virtually unfettered surveillance, but it’s fair to say that the number of U.S. citizens and residents potentially affected runs well into the tens of millions.

Similarly, it was never clear how the intelligence agencies actually afforded U.S. citizens who live or travel abroad the additional safeguards they’re obliged to provide.  I’m pretty sure that when I make a call from my cell phone, it’s the British number that gets registered, not my U.S. passport.  (I don’t actually know this for certain because the NSA has never released its “minimisation rules,” the criteria that are intended to protect against the collection of data from U.S. persons.)

It’s not really clear from the president’s directive what the guidelines will look like.  If they retain some distinctions between U.S. persons and the rest of the world, as a footnote in the policy directive suggests, it’s likely that the less-protective standard will be applied in practice.  It’d be far better to require the same standards in all cases.

In other areas, the president left many of the most sweeping practices essentially unchanged.  For example, the changes he announced relate to the use—not the collection—of personal data.  In fact, his policy directive explicitly authorises the “bulk collection” of data.

And his suggestion that telecommunications providers, not the government, would store the data doesn’t meaningfully protect our privacy; it simply shifts an administrative burden to the private sector.  Even if the government does take this approach, it can’t outsource its obligation to guarantee human rights.

Lawmakers are searching for ways to ensure that the quest for security doesn’t undermine privacy and freedom. The president’s proposals appear to offer solutions, but on closer examination they leave many questions unanswered.

Bochenek is senior director for international law and policy at Amnesty International’s Secretariat, in London.

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