Amnesty International has today withdrawn its support for the USA Freedom Act (H.R. 3361) after changes made to the original text by the U.S. House of Representatives. The bill provides no protection for non-US persons and the provisions designed to protect U.S. persons have been extensively watered down. Significant further reform is necessary in order to ensure the privacy rights of U.S. and non-U.S. persons are respected. Amnesty International urges the U.S. Senate to ensure that the following minimum safeguards for the right to privacy in surveillance are passed in U.S. law.
Minimum safeguards for the right to privacy in surveillance
The U.S. must recognise that indiscriminate mass surveillance is a particularly serious violation of the right to privacy protected at the international, regional and domestic level, and that surveillance of an individual's communications must only occur when strictly necessary and after other methods of obtaining information have failed.
Under international law, legitimate surveillance must be:
- authorised by a law that allows an individual to be able to foresee its consequences for him and based on reasonable suspicion (therefore targeted),
- be strictly necessary and proportionate to a legitimate aim, such as fighting serious crime;
- authorised by warrant from an independent body and subject to judicial and democratic control and oversight; and
States must amend legislation to ensure the above requirements are met. Regulated by such a legal framework, targeted surveillance may be a justifiable limitation on the right to privacy if the interference is the minimum possible and is only that which is strictly necessary to achieve a legitimate objective. Targeted surveillance, subject to stringent legal requirements, will therefore be more legitimate than indiscriminate mass surveillance, which can never be legitimate.
Further, only information that is required to meet a legitimate aim, such as fighting serious crime, should be retained and searched. There must be stringent limits on when governments can access data and it may only be retained for the shortest possible period. A recent decision of the European Court of Justice1 confirms that the mass retention of communications data without "differentiation, limitation or exception being made in light of the objective of fighting against serious crime" violates the right to privacy.