Comparing NSA Reforms to International Law: A New Graphic by AccessNow

All too often bills are proposed and laws are passed in the United States that are in grave violation of the Universal Declaration of Human Rights and international humanitarian treaties. And all too rarely does U.S. domestic policy get spoken about in terms of human rights laws. A case in point: the recent spate of bills responding to the unlawful mass surveillance conducted by the NSA revealed in the flood of disclosures from whistleblower Edward Snowden.

The NSA's actions are fundamentally at odds with the human rights to privacy, free expression, freedom of information, as well as the basic right to assemble and organize for change. Yet none of the current Congressional legislative proposals, or the expected legislation to be sponsored by President Obama, appear aimed at addressing international law obligations.

To help provide a framework to talk about mass government surveillance in terms of international human rights obligations, EFF worked with a broad spectrum of organizations across the world to craft the 13 International Principles on the Application of Human Rights to Communications Surveillance. The Principles are firmly rooted in well-established human rights law, drawing on the rights to privacy, freedom of opinion and expression and freedom of association.

Our friends at AccessNow measured how the four legislative proposals stack up against the 13 Principles. Unfortunately, none of the proposed solutions fully bring the NSA back within the bounds of human rights laws. But one in particular, the USA FREEDOM Act, is in closest concordance with the Principles.

Two of the bills proposed in Congress, if passed would actually move the United States in the wrong direction, driving the U.S. further away from the 13 Principles. By far, the worst proposed reform was introduced by Senator Diane Feinstein: the FISA Improvements Act, and it seeks to codify some of the worst aspects of NSA spying into law. Particularly, it attempts to legalize bulk collection, an inherently disproportionate activity that treats everyone who uses communications technology as worthy of surveillance, and without proper judicial review.

The wrong reforms

Feinstein’s fake fix is a violation of international law and would more permanently position U.S. surveillance in direct contradiction with the requirements of international law, such as legality, legitimate aim (the idea that surveillance should only occur if there is a well defined legal interest in doing so), and proportionality, all spelled out in the 13 Principles. The NSA’s “collect it all” strategy— which gathers information regardless of whether it pertains to individuals who likely committed a crime—is against international law, which, as the Principles outline, requires that restrictions on human rights be both “necessary” and “proportionate” and subject to meaningful and timely judicial review. The FISA Improvements Act aims to bestow Congressional approval upon the NSA’s bulk collection practices. It’s a terrible bill, and we must not let it pass.

The White House has also indicated that it will offer legislation to reform the NSA’s bulk surveillance, although the details of this proposal have not been revealed. Until the proposed legislation is released, it will be hard to tell if Obama’s reforms would legally protect the right to privacy as required by international law. But the proposals he outlined do contain increased protections for U.S. persons whose call records metadata is unconstitutionally collected, as well as various ways of minimizing how much is collected by limiting the scope of what is searched through when the NSA queries its database of collected call records.

Unfortunately, it appears that the President’s plan will be lacking other features required by the Principles. Obama’s proposals fall silent on the need for increased transparency of the FISA Court, the secret court that’s been making secret interpretations of the law to enable U.S. global surveillance. The White House proposals also offer no details on how non-U.S. persons will be protected from American surveillance. Individuals should not be denied pri