Digital Age Privacy Rights

Stephen Lendman
Activist Post

Article 17 of the International Covenant on Civil and Political Rights (ICCPR) states:

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. 

Everyone has the right to the protection of the law against such interference or attacks.

Article 8 of the European Convention on Human Rights states:

Everyone has the right to respect for his privacy and family life, his home and his correspondence.

Articles 12 of the Universal Declaration of Human Rights states:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence…Everyone has the right to the protection of the law against such interference or attacks.

Various other international accords affirm privacy rights. So does the US Constitution. The Fourth Amendment protects against lawless searches and seizure.

The 1974 Privacy Act governs the collection, maintenance, use and dissemination of personal information maintained by federal agencies.

It prohibits disclosing it without written consent, stating:

No (federal) agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains.

All federal agencies must prevent unauthorized release of personal records.

The 2002 Federal Information Security Management Act (FISMA) requires administration officials to insure Americans’ personal records are adequately protected from misuse and security breaches.

Washington consistently spurns rule of law principles. Mass NSA surveillance is one of many examples.

In November, the General Assembly addressed privacy rights in the digital age. Over 50 member states co-sponsored a resolution to protect what’s too precious to lose.

On December 18, the 193-member body unanimously approved a resolution titled: “The Right to privacy in the digital age.”

It reaffirmed a fundamental human right. No one should be denied the right to privacy. No one should be lawlessly spied on.

No one living anywhere should be victimized. No one should be denied their fundamental human and civil rights.

The Electronic Frontier Foundation (EFF) called the General Assembly’s resolution “one small step for privacy, one giant leap against surveillance.”

It “requests the United Nations High Commissioner for Human Rights to submit a report to the General Assembly on the protection of the right to privacy, including in the context of domestic and extraterritorial surveillance and/or interception of digital communications and collection of personal data, including on a mass scale.”

EFF, likeminded legal scholars, and others prepared “13 International Principles for the Application of Human Rights to Communications Surveillance.”

It’s also called “Necessary and Proportionate Principles.” They include:

1. Legality: Privacy exceptions must be legally authorized.
2. Legitimate Aim: They must be consistent with democratic values.
3. Necessity: Surveillance must be limited to what’s clearly vital to achieve legitimate aims.
4. Adequacy: Authorized communications surveillance must comply with a legitimate identified aim.
5. Proportionality: Communications surveillance decisions must consider benefits sought against harmful consequences.
6. Competent Judicial Authority: An impartial, independent one must determine whether specific communications surveillance initiatives are legitimate.
7. Due Process: Fundamental human rights should be respected. Lawful procedures only should be permitted.
8. User Notification: Targeted individuals should be informed. Reasons for surveillance should be disclosed. Enough time should be given for appeal.
9. Transparency: Nations should make known what surveillance requests were approved or rejected. Investigatory types and purposes should be explained.
10. Public Oversight: Independent “mechanisms” should be established to assure transparency and accountability.
11. Integrity of Communications and Systems: Service providers as well as hardware and software vendors should not be required to build surveillance capabilities into their systems.
12. Safeguards for International Cooperation: Nations may need help from foreign service providers. They should be able to get it without interference.
13. Safeguards Against Legitimate Access: Appropriate legislation should be enacted. It should criminalize lawless surveillance.

Last August, Obama appointed a so-called independent commission/Review Group on Intelligence and Communications Technologies to assess and issue recommendations on NSA mass surveillance.

Director of National Intelligence (DNI) head James Clapper supervised it. At the time, Obama said:(W)e’re forming a high-level group of outside experts to review our entire intelligence and communications technologies. 

We need new thinking for a new era. We now have to unravel terrorist plots by finding a needle in the haystack of global telecommunications. 

And meanwhile, technology has given governments – including our own – unprecedented capability to monitor communications. 

They’ll consider how we can maintain the trust of the people, how we can make sure that there absolutely is no abuse in terms of how these surveillance technologies are used, ask how surveillance impacts our foreign policy – particularly in an age when more and more information is becoming public. 

And they will provide an interim report in 60 days and a final report by the end of this year, so that we can move forward with a better understanding of how these programs impact our security, our privacy, and our foreign policy.”

On December 12, it released its report titled “Liberty and Security in a Changing World.”

Its members were handpicked to support administration policy. They include:

• former acting CIA head Michael Morell;
• former National Coordinator for Security, Infrastructure Protection, and Counterterrorism Richard Clarke;
• former Administrator of the White House Office of Information and Regulatory Affairs Cass Sunstein; Francis Boyle calls him a neocon;
• Democrat party connected/political advocacy group Center for American Progress member Peter Swire; and
• University of Chicago Law Professor Geoffrey Stone. 

Last Summer, he made contradictory statements. On the one hand, he said Bush violated Fourth Amendment protections. On the other, he claimed Obama didn’t, saying:

Unlike the Obama program, which is limited to obtaining information about phone calls made and received from telephone companies, the Bush program authorized the government to wiretap private phone conversations. 

From a constitutional perspective, the difference is critical, and it is unfortunate that President Obama has not done a better job of explaining the distinction, and why his administration’s program does not violate the constitutional ‘right of privacy.’

Warrantless spying goes way beyond wiretapping. Mass surveillance watches everyone extrajudicially. Stone turned a blind eye to extreme lawlessness. Imagine what he teaches students.

He publicly denounced Edward Snowden, saying:

(F)rom a simple, straightforward, technical legal standpoint, there’s absolutely no question that Snowden violated the law. 

And from that standpoint, if he’s tried, he will be convicted, and he is in fact, from that perspective, a criminal.

EFF addressed Obama’s Review Board findings. It said risks caused by mass surveillance were recognized. Forty recommendations were made.

Areas covered included transparency and protecting online security tools, as well as NSA, FISA Court authority, and civil liberties oversight groups organizational reforms.

They stopped well short of what’s needed. According to EFF:

They “left open the door for future mass surveillance and failed to address the constitutionality of the NSA’s mass spying.”

EFF senior staff attorney Kurt Opsahl explained further, saying:

The president’s panel agreed with the growing consensus that mass electronic surveillance has no place in American society. 

The review board floats a number of interesting reform proposals, and we’re especially happy to see them condemn the NSA’s attacks on encryption and other security systems people rely upon. 

But we’re disappointed that the recommendations suggest a path to continue untargeted spying. 

Mass surveillance is still heinous, even if private company servers are holding the data instead of government data centers.

EFF’s Trevor Timm added:

We’re concerned that the panel appears to allow the NSA to continue the mass collection of emails, chats and other electronic communications of Americans under the pretext that the NSA is ‘targeting’ foreigners overseas. 

While we’re happy that the panel acknowledged that foreigners abroad need some additional privacy protections, mass surveillance isn’t acceptable for Americans or foreigners. 

Obama’s handpicked insider group left unaddressed what’s most important. Mass surveillance is unconstitutional. It violates fundamental international law provisions. It has no place in any society.

Its use reflects police state lawlessness. Its practice assures fundamental rights no longer exist.

America is a hair’s breadth away from full-blown tyranny. Obama bears full responsibility. He exceeded the worst of George Bush.

He governs by diktat authority. His secret kill list decides who lives or dies. He’s ravaging one country after another.

He’s waging war on fundamental human and civil rights at home. They’re disappearing in plain sight. No one any longer is safe.

Anyone can be arrested for any reason or none at all. They can be indefinitely detained uncharged. They can be held in a military dungeon.

They can be left there out of sight and mind. They can get denied the right to counsel and other basic rights. They can be killed by presidential edict.

Civil protections no longer apply. Habeas and due process rights are gone. Judicial fairness is null and void. Privacy no longer exists.

Mass spying facilitates out-of-control lawlessness. Big Brother watches everyone. Obama’s so-called independent Review Board said it’s OK.

Mass surveillance and freedom can’t co-exist. Continuing it assures its extinction. Edward Snowden said:

I do not want to live in a world where everything I do or say is recorded.

Millions of Americans feel the same way. So do countless others worldwide. Freedom is too precious to lose. It’s vanishing today in plain sight.

Stephen Lendman lives in Chicago and can be reached at [email protected]. His new book is titled How Wall Street Fleeces America: Privatized Banking, Government Collusion and Class War. Also visit his blog site at sjlendman.blogspot.com and listen to cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening. http://www.progressiveradionetwork.com/the-progressive-news-hour/