The Cable

Exclusive: Inside America's Plan to Kill Online Privacy Rights Everywhere

The United States and its key intelligence allies are quietly working behind the scenes to kneecap a mounting movement in the United Nations to promote a universal human right to online privacy, according to diplomatic sources and an internal American government document obtained by The Cable.

The diplomatic battle is playing out in an obscure U.N. General Assembly committee that is considering a proposal by Brazil and Germany to place constraints on unchecked internet surveillance by the National Security Agency and other foreign intelligence services. American representatives have made it clear that they won't tolerate such checks on their global surveillance network. The stakes are high, particularly in Washington -- which is seeking to contain an international backlash against NSA spying -- and in Brasilia, where Brazilian President Dilma Roussef is personally involved in monitoring the U.N. negotiations.

The Brazilian and German initiative seeks to apply the right to privacy, which is enshrined in the International Covenant on Civil and Political Rights (ICCPR), to online communications. Their proposal, first revealed by The Cable, affirms a "right to privacy that is not to be subjected to arbitrary or unlawful interference with their privacy, family, home, or correspondence." It notes that while public safety may "justify the gathering and protection of certain sensitive information," nations "must ensure full compliance" with international human rights laws. A final version the text is scheduled to be presented to U.N. members on Wednesday evening and the resolution is expected to be adopted next week.

A draft of the resolution, which was obtained by The Cable, calls on states to "to respect and protect the right to privacy," asserting that the "same rights that people have offline must also be protected online, including the right to privacy." It also requests the U.N. high commissioner for human rights, Navi Pillay, present the U.N. General Assembly next year with a report on the protection and promotion of the right to privacy, a provision that will ensure the issue remains on the front burner.

Publicly, U.S. representatives say they're open to an affirmation of privacy rights. "The United States takes very seriously our international legal obligations, including those under the International Covenant on Civil and Political Rights," Kurtis Cooper, a spokesman for the U.S. mission to the United Nations, said in an email. "We have been actively and constructively negotiating to ensure that the resolution promotes human rights and is consistent with those obligations."

But privately, American diplomats are pushing hard to kill a provision of the Brazilian and German draft which states that "extraterritorial surveillance" and mass interception of communications, personal information, and metadata may constitute a violation of human rights. The United States and its allies, according to diplomats, outside observers, and documents, contend that the Covenant on Civil and Political Rights does not apply to foreign espionage.

In recent days, the United States circulated to its allies a confidential paper highlighting American objectives in the negotiations, "Right to Privacy in the Digital Age -- U.S. Redlines." It calls for changing the Brazilian and German text so "that references to privacy rights are referring explicitly to States' obligations under ICCPR and remove suggestion that such obligations apply extraterritorially." In other words: America wants to make sure it preserves the right to spy overseas.

The U.S. paper also calls on governments to promote amendments that would weaken Brazil's and Germany's contention that some "highly intrusive" acts of online espionage may constitute a violation of freedom of expression. Instead, the United States wants to limit the focus to illegal surveillance -- which the American government claims it never, ever does. Collecting information on tens of millions of people around the world is perfectly acceptable, the Obama administration has repeatedly said. It's authorized by U.S. statute, overseen by Congress, and approved by American courts.

"Recall that the USG's [U.S. government's] collection activities that have been disclosed are lawful collections done in a manner protective of privacy rights," the paper states. "So a paragraph expressing concern about illegal surveillance is one with which we would agree."

The privacy resolution, like most General Assembly decisions, is neither legally binding nor enforceable by any international court. But international lawyers say it is important because it creates the basis for an international consensus -- referred to as "soft law" -- that over time will make it harder and harder for the United States to argue that its mass collection of foreigners' data is lawful and in conformity with human rights norms.

"They want to be able to say ‘we haven't broken the law, we're not breaking the law, and we won't break the law,'" said Dinah PoKempner, the general counsel for Human Rights Watch, who has been tracking the negotiations. The United States, she added, wants to be able to maintain that "we have the freedom to scoop up anything we want through the massive surveillance of foreigners because we have no legal obligations."

The United States negotiators have been pressing their case behind the scenes, raising concerns that the assertion of extraterritorial human rights could constrain America's effort to go after international terrorists. But Washington has remained relatively muted about their concerns in the U.N. negotiating sessions. According to one diplomat, "the United States has been very much in the backseat," leaving it to its allies, Australia, Britain, and Canada, to take the lead.

There is no extraterritorial obligation on states "to comply with human rights," explained one diplomat who supports the U.S. position. "The obligation is on states to uphold the human rights of citizens within their territory and areas of their jurisdictions."

The position, according to Jamil Dakwar, the director of the American Civil Liberties Union's Human Rights Program, has little international backing. The International Court of Justice, the U.N. Human Rights Committee, and the European Court have all asserted that states do have an obligation to comply with human rights laws beyond their own borders, he noted. "Governments do have obligation beyond their territories," said Dakwar, particularly in situations, like the Guantanamo Bay detention center, where the United States exercises "effective control" over the lives of the detainees.

Both PoKempner and Dakwar suggested that courts may also judge that the U.S. dominance of the Internet places special legal obligations on it to ensure the protection of users' human rights.

"It's clear that when the United States is conducting surveillance, these decisions and operations start in the United States, the servers are at NSA headquarters, and the capabilities are mainly in the United States," he said. "To argue that they have no human rights obligations overseas is dangerous because it sends a message that there is void in terms of human rights protection outside countries territory. It's going back to the idea that you can create a legal black hole where there is no applicable law." There were signs emerging on Wednesday that America may have been making ground in pressing the Brazilians and Germans to back on one of its toughest provisions. In an effort to address the concerns of the U.S. and its allies, Brazil and Germany agreed to soften the language suggesting that mass surveillance may constitute a violation of human rights. Instead, it simply deep "concern at the negative impact" that extraterritorial surveillance "may have on the exercise of and enjoyment of human rights." The U.S., however, has not yet indicated it would support the revised proposal.

The concession "is regrettable. But it’s not the end of the battle by any means," said Human Rights Watch’s PoKempner. She added that there will soon be another opportunity to corral America's spies: a U.N. discussion on possible human rights violations as a result of extraterritorial surveillance will soon be taken up by the U.N. High commissioner.

Follow me on Twitter: @columlynch.

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The Cable

Rabid Dogs, Nuclear Rights, and Fussy Frenchies: What to Watch at the Iran Talks

Geneva — American and Iranian negotiators settled into a luxury hotel here for several days of talks designed to hash out the final details of what could be a historic nuclear deal. Secretary of State John Kerry and other foreign secretaries are watching the talks closely, ready to fly to Geneva at a moment's notice if an agreement is reached.

U.S. officials say they're cautiously optimistic these talks will pan out. The two sides came exceptionally close to a deal earlier this month, but those negotiations ended with Kerry and his colleagues boarding their planes and flying home without an agreement. This time around, officials from both sides believe that many of the disputes that gummed up the last round of negotiations have been at least partially resolved.

Don't take out the champagne just yet, however. Some significant differences remain, and it's not at all clear that the negotiators will be able to bridge all of them. Below are three key issues worth watching as the talks get underway.

United They Stand. The negotiations are being led by the so-called P5+1 -- a grouping of the United States, England, Russia, France, China, and Germany -- and the success of any deal will depend on whether all of the countries will be willing to sign off on it. The last time around, France refused, effectively vetoing the proposed agreement. Paris felt that the deal didn't do enough to reduce Iran's stockpile of enriched uranium or stop the construction of the plutonium enrichment facility at Arak. The key question now is whether the current talks will produce a deal that can go as far as France wants without demanding concessions that go beyond what Tehran can accept.

Nuclear Rights. It may seem small in the scheme of things, but one of the biggest remaining disagreements between the two sides concerns the question of whether Iran has the "right" to enrich uranium. Tehran has long demanded what would amount to a Western stamp of approval of sorts for its nuclear efforts. The United States has refused to grant it for just as long. Part of the disagreement is practical: Acknowledging that Iran has a right to continue enriching uranium would allow Iran to keep much of its current nuclear infrastructure intact, albeit under strict international supervision. The other aspect is legal: Tehran could use Western acknowledgement of its right to enrich uranium to argue that the United States and its allies have no legal standing for sanctioning its nuclear program. On Wednesday, a senior administration official said the Non-Proliferation Treaty is "silent" on the issue. "It neither confers a right nor denies a right," the official said. "We do not believe it is inherently there." The official expressed optimism that the two sides could find common ground, but the wording issue has stymied previous attempts at a deal.

Tehran's "Rabid Dogs." Iran's supreme leader, Ayatollah Ali Khamenei, raised eyebrows Wednesday when he told members of a paramilitary group that Israel was "a rabid dog" and accused the United States of harboring "warmongering" policies. Khamenei also mocked Washington for the recent government shutdown, telling the crowd that "instead of using threats, go and repair your devastated economy so that your government is not shut down for 15 or 16 days." It's easy to listen to those comments and conclude that Khamenei is simply uninterested in a deal, which is a definite possibility. Some administration officials take a different view, however. They say that Khamenei might have been directing his comments at a domestic audience that remains deeply skeptical of U.S. intentions after decades of hostility. The more important aspect of the supreme leader's comments, they argue, were his continued public support of the ongoing nuclear talks. The success of the current negotiations will come down to which interpretation of Khamenei's words is correct.

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