Amnesty International USA and the American Civil Liberties Union (ACLU) thank the Privacy and Civil Liberties Oversight Board (PCLOB) for the opportunity to submit this statement for the record regarding the application of international human rights law to US surveillance practices.
In this submission, we briefly set out reasons the PCLOB should assess US surveillance practices in an international human rights law framework; summarize key characteristics of Section 702 of the FISA Amendments Act; describe international human rights law on the right to privacy; identify human rights concerns with the collection, storage and use of communications under Section 702; and explain that US human rights obligations are legally binding and applicable to US surveillance practices. We conclude by urging the PCLOB to recommend the repeal of Section 702 as well as other measures to substantially reform US surveillance practices.
The ACLU and Amnesty International USA urge the Privacy and Civil Liberties Oversight Board to recommend the repeal of Section 702 of the FISA Amendments Act. As the ACLU explained in its March 19, 2014 submission to PCLOB, Section 702 is unconstitutional. Moreover, as Amnesty International USA and the ACLU have explained in this submission, Section 702 permits arbitrary and unlawful interferences with the right to privacy in violation of international human rights law. In sum, Section 702 violates international obligations to protect privacy guaranteed by Article 17 of the ICCPR for the following reasons:
- Public Transparency: Section 702 fails to establish clear and precise limitations on the scope of surveillance authority granted; to the contrary, it provides broad and effectively unfettered discretion to US authorities to conduct surveillance;
- Proportionality and Necessity: Section 702 permits the collection and storage of personal data, including of "about-the-target" communications. This involves the copying and scanning of virtually any message entering or leaving the US), without any consideration of the danger to national security posed by the intended target.
- Independent oversight and redress: The FISC reviews only general procedures, not specific targeting decisions, making its review wholly inadequate under the ICCPR.
- Non-discrimination: Section 702 denies any protection whatsoever to non-US persons outside the US, apparently based solely on the flawed premise that the US government does not owe any privacy protections to non-US persons—a premise that the President has recently rejected.
At the very least, Section 702 should be amended to prohibit surveillance without individualized suspicion and prior review by a competent, independent and impartial tribunal. Section 702 should also provide strict limitations on the scope and duration of surveillance, and use, retention and dissemination of personal communications. The definition of "foreign intelligence information" should be amended and strictly limited to, for example, information pertaining to espionage or national security.
The ACLU and Amnesty International USA also recommend that the Executive Branch disclose the legal authority and scope of all signals intelligence practices of non-US persons outside of US territory. All signals intelligence collection—regardless of nationality or the location of individuals—should be authorized in a publicly accessible law setting out the potential scope and duration of surveillance, rather than by secret executive orders or other non-accessible rules. At the very least, the President should direct the disclosure of a meaningful unclassified description of the targeting procedures used in collecting communications under Section 702. The President should also direct the release of executive memoranda and FISC opinions interpreting Section 702, with only those redactions necessary to protect legitimately secret information.
The ACLU and Amnesty International USA urge that all branches of the US government recognize and adhere to US human rights obligations with regard to surveillance operations that impact people across the world. Any surveillance measure must comport with international law, and human rights protections should not be denied solely on the basis of nationality. Section 702 fails to provide any protection to non-US persons outside US territory and US law should be changed to reflect, at minimum, the necessary protections required by international law. Notwithstanding the US official position on extraterritorial application of international human rights law generally and obligations to respect privacy specifically, the Executive Branch should, as a matter of policy, commit to meeting human rights standards protecting the rights to privacy and freedom of expression and opinion as it conducts surveillance inside and outside of US territory.