Transparency, National Security, and Protecting Rights Online

Date: 
Friday, June 28, 2013 - 11:14

In light of recent events, the Global Network Initiative calls on the United States and other governments to increase the transparency, oversight, and accountability of laws, regulations, and actions concerning communications surveillance.  

GNI Principles and the rule of law 

GNI’s Principles on Freedom of Expression and Privacy are rooted in international human rights law, while also recognizing that companies are compelled to obey domestic law in countries where they operate. 

GNI does not underestimate the challenge governments face in finding the appropriate balance between security and privacy and free expression. But international human rights standards set out narrowly defined circumstances under which governments may restrict the rights to free expression and privacy.1  

GNI is particularly concerned by surveillance programs that restrict the right to privacy in the context of inadequate legal safeguards. This is a global problem. Recent statements by U.S. authorities make clear the need for informed public debate on whether legislative and judicial oversight of surveillance that occurs entirely in secret is consistent with international human rights standards and the rule of law. The lack of transparency in the United States around the Foreign Intelligence Surveillance Court (FISC) interpretations of the FISA Amendments Act and Section 215 of the USA PATRIOT Act, as well as the inability of companies to report on the requests they are receiving, make it difficult for companies operating in the United States to be transparent regarding their efforts to protect free expression and privacy. 

In light of this we call for three specific actions:

1) Create a declassification process for significant legal opinions to inform public debate and enable oversight of government actions. 

GNI supports recently proposed legislation to facilitate declassification of significant legal decisions by the FISC and the FISC Court of Review. We recognize that unclassified summaries of FISC opinions may be necessary in some cases but believe that greater declassification will enable informed public debate as well as improve public oversight of the nature and the scope of the government’s use of FISA authorities. 

2) Revise the provisions that restrict discussion of national security demands. 

While understanding the need for confidentiality in matters of national security, GNI is deeply concerned by the nondisclosure obligations imposed on companies who receive FISA orders and National Security Letters (NSLs). These letters effectively and perpetually prohibit companies from reporting even in general terms, after the fact, on the national security demands they receive.  Policymakers should seriously consider reforms that would require government authorities to make a factual showing to the court to demonstrate that harm would result from disclosure, before issuance or renewal of gag orders, or placing a specific time limit on those orders.

3) Governments—especially those already committed to protecting human rights online—should lead by example and report on their own surveillance requests.

GNI commends the 21 governments of the Freedom Online Coalition for their commitment to protecting free expression and privacy online and urges other governments to follow their lead. 

However, the credibility of their efforts ultimately rests on the example they set through their own domestic laws and policies. Contradictions between countries’ domestic surveillance policies and practices and their foreign policy positions on Internet freedom and openness fundamentally undermine their ability to advocate for other governments to support Internet freedom. 

GNI urges the governments in the Freedom Online Coalition to report on the requests they make for electronic communications surveillance. We also urge them to make it legally possible for companies to report regularly to the public on the government requests that they receive from law enforcement as well as national security authorities. Annual reports, such as the U.S. Wiretap Report and the U.K. Government report of the Interception of Communications Commissioner offer a starting point for more comprehensive disclosure of information about the number of national security surveillance orders made and the number of persons affected. 

Next steps

GNI will advocate strongly with all governments, including the U.S., on behalf of these reforms, which are a prerequisite for informed global public debate on the balance between national security and privacy and freedom of expression rights. We view such transparency reforms as necessary first steps in examining whether domestic law adequately protects the rights to privacy and freedom of expression. All governments have a responsibility to work together with the private sector and civil society to determine the narrowly defined circumstances (based on internationally recognized human rights laws and standards) under which surveillance can take place. We will continue to push for this dialogue and press governments to meet their obligation to protect the rights of freedom of expression and privacy for people all over the world.