The Cable

U.S. to Back Privacy Resolution It Knee-Capped

The United States, Great Britain, and its chief intelligence allies, known as the Five Eyes, agreed late Friday to support a Brazilian and German sponsored General Assembly resolution promoting an international right to privacy, but only after thwarting efforts to impose new legal constraints on foreign espionage that could potentially restrain the U.S. National Security Agency, according to diplomats involved in the negotiations.

Last month, Brazil and Germany introduced a U.N. General Assembly resolution that sought to apply the right to privacy, enshrined in the International Covenant on Civil and Political Rights, to online communications. The draft raised concern that mass "extraterritorial" surveillance and interception of communications may constitute a violation of individuals' rights under the terms of the Covenant.

But the United States opposed that measure on the grounds that there was no universal right to privacy, and that governments were only required to observe an individual's privacy rights in their own countries. A confidential State Department paper, containing a series of American "red lines" for the negotiations, called for clarifying any reference to privacy rights and "remove suggestion[s] that such obligations apply extra territorially." The United States secured that concession, and succeeded in watering down other parts of the resolution, stripping out several references to "illegal surveillance" in the draft. "Recall that the USG's [US Government's] collection activities that have been disclosed are lawful collections done in a manner protective of privacy rights," the State Department paper said.

Still, the resolution, which is likely to be adopted in the General Assembly next week, has put the issue of online privacy on the U.N. General Assembly agenda for the first time, assuring that the potential threat that digital espionage poses to individuals' human rights will continue to be debated at the world body, both in the U.N. General Assembly Chamber and at the U.N. Human Rights Council in Geneva.

The resolution "reaffirms the right to privacy" and "affirms that the same rights that people have offline must also be protected online. It voices concern at "the negative impact the surveillance and/or interception of communications, including extraterritorial surveillance and/or interception of communications, as well as the collection of personal data, in particular when carried out on a mass scale, may have on the exercise and enjoyment of human rights."

The resolution asks the U.N. High Commissioner for Human Rights  to produce a report for the U.N. General Assembly and the Human Rights Council next year that addresses "the protection and promotion of the right to privacy in the context of domestic and extraterritorial surveillance and/or interception of digital communication and collection of personal data, including on a mass scale."

The U.S. mission to the United Nations did not respond to a request for comment. But three diplomats involved in the talks confirmed that the U.S. had agreed to join in the consensus supporting the resolution.

Dinah PoKempner, the legal counsel for Human Rights Watch, said earlier this week that the Brazilian and German concessions to the United States and its allies were "regrettable." But she said U.S. backing of the measure marked an important and positive first step.

"Supporting this resolution, and particularly acknowledging that privacy can be violated by global mass surveillance, would help to demonstrate to its allies it actually does feel some obligation to respect the rights of their citizens as well," she wrote in an email. "The U.S. has historically been very strong on many aspects of privacy, though in recent years Europe has taken the lead on protecting personal data. It would be a very positive sign if the US would resume its historic role as a leader in rights protection."

Follow me on Twitter @columlynch.

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