UN Report Says Mass Surveillance May Violate International Law

from the good-to-see dept

Thu, Jul 17th 2014 7:47am — Mike Masnick

The good folks over at the EFF have a detailed overview of a new report from the UN, which has basically found that mass surveillance, similar to that which is carried out by the NSA and GCHQ can often violate international law. The full report is just 16 pages, but the EFF version highlights some of the key lines. The biggest is the report's rejection of the whole "collect the haystack" approach to mass surveillance. The UN report makes it clear that this is not a reasonable approach, especially when it is not shown to be "necessary and proportionate."

Where there is a legitimate aim and appropriate safeguards are in place, a State might be allowed to engage in quite intrusive surveillance; however, the onus is on the Government to demonstrate that interference is both necessary and proportionate to the specific risk being addressed. Mass or “bulk” surveillance programmes may thus be deemed to be arbitrary, even if they serve a legitimate aim and have been adopted on the basis of an accessible legal regime. In other words, it will not be enough that the measures are targeted to find certain needles in a haystack; the proper measure is the impact of the measures on the haystack, relative to the harm threatened; namely, whether the measure is necessary and proportionate.

It further finds that many countries do not effectively limit who has access to such bulk data collections, which exacerbates the problem:

One factor that must be considered in determining proportionality is what is done with bulk data and who may have access to them once collected. Many national frameworks lack “use limitations”, instead allowing the collection of data for one legitimate aim, but subsequent use for others. The absence of effective use limitations has been exacerbated since 11 September 2001, with the line between criminal justice and protection of national security blurring significantly. The resulting sharing of data between law enforcement agencies, intelligence bodies and other State organs risks violating article 17 of the Covenant, because surveillance measures that may be necessary and proportionate for one legitimate aim may not be so for the purposes of another

It also finds requirements for data retention to be problematic:

Concerns about whether access to and use of data are tailored to specific legitimate aims also raise questions about the increasing reliance of Governments on private sector actors to retain data “just in case” it is needed for government purposes. Mandatory third-party data retention -- a recurring feature of surveillance regimes in many States, where Governments require telephone companies and Internet service providers to store metadata about their customers’ communications and location for subsequent law enforcement and intelligence agency access – appears neither necessary nor proportionate.

The report condemns the pernicious use of "secret interpretations" of the law, something that has become all too common in the US:

Consequently, secret rules and secret interpretations – even secret judicial interpretations – of law do not have the necessary qualities of “law”. Neither do laws or rules that give the executive authorities, such as security and intelligence services, excessive discretion; the scope and manner of exercise of authoritative discretion granted must be indicated (in the law itself, or in binding, published guidelines) with reasonable clarity. A law that is accessible, but that does not have foreseeable effects, will not be adequate. The secret nature of specific surveillance powers brings with it a greater risk of arbitrary exercise of discretion which, in turn, demands greater precision in the rule governing the exercise of discretion, and additional oversight.

While reports like this may not directly impact the US's practices, it adds to the growing understanding and recognition both of what the NSA (and others) does, but also why it's totally unacceptable.

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Filed Under: human rights, mass surveillance, necessary and proportionate, un

34 Comments

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That One Guy (profile), 17 Jul 2014 @ 7:07am

Wrong quote?
The third quote seems to be the exact same as the first, and doesn't seem to mention data retention requirements.

Regarding the report itself, while certainly nice, I imagine the US and UK are both going to do everything they can to pretend it simply doesn't exist. Either that or just trot out more of the usual 'Because terrorists/National Security!' crap excuses in response.
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Anonymous Coward, 17 Jul 2014 @ 7:50am

International law will have to change!
This just means they will come up with something that changes international law to fit their needs.

Or even simpler, just have Websters change the definition of 'international law'
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tomczerniawski, 17 Jul 2014 @ 7:56am

Terrorism can kill thousands, tens of thousands, or in the case of WMD terrorism, hundreds of thousands or even millions...

Total surveillance can kill us all, if a sufficiently evil power gets hold of it. Total surveillance does not prevent genocide, it facilitates genocide.
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David Muir (profile), 17 Jul 2014 @ 8:00am

UN Legitimacy
I thought we'd established that the UN has very little credibility left. It would have been nicer perhaps if this report came from a different source.

Also, echoing That One Guy about the wrong quote we noticed.
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Anonymous Coward, 17 Jul 2014 @ 8:02am

"UN Report Says Mass Surveillance May Violate International Law"

A: The U.S. pretty much writes international law

B: The U.S. doesn't care about following international law, even the provisions it wrote. It just wants others to follow those laws. The laws are for everyone else not the U.S.

C: The U.S. can probably change International law. It's not like Russia or China or any of the other big countries are against surveillance. They would gladly comply with amending it to allow more surveillance.
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Anonymous Coward, 17 Jul 2014 @ 8:03am

Fuck the UN!
America (or any sane nation) must maintain its sovereignty! For an American, no court is higher than SCOTUS! No law higher than that which its citizens have (by election) instituted through their legislative branches.

Now despite that diatribe, it is against the 4th fucking Amendment for mass surveillance America is breaking it own damn laws before we bother with those turds in the UN!
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Anonymous Coward, 17 Jul 2014 @ 8:05am

Re:
B & C are contrary to each other.

If indeed the laws are for everyone else but not us... we don't need to amend shit! It never applied to us to begin with... we can surveill till the cows come home but they better damn sure not do it!
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That One Guy (profile), 17 Jul 2014 @ 8:12am

Re: UN Legitimacy
A good idea remains a good idea, even if spoken by an idiot.

A bad idea remains a bad idea, even if spoken by a genius.

Don't focus on the source, focus on the idea.
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Anonymous Coward, 17 Jul 2014 @ 8:14am

Re: Wrong quote?
"Regarding the report itself, while certainly nice, I imagine the US and UK are both going to do everything they can to pretend it simply doesn't exist. Either that or just trot out more of the usual 'Because terrorists/National Security!' crap excuses in response"

While I'm sure you are correct in that the US and UK are going to try and stifle the report, I'm not so sure that the report is specifically for them either. I just got done watching IGFs discussion on world wide events (link) yesterday and things are moving rather quickly in the EU and South America. Sure they are talking about Net Neutrality, but inserted in these bills are also surveillance provisions many times since both these issues have exploded recently.

What will imho change the government's stance will probably be economic factors, and we are already starting to see this happen across Europe. I just recieved an email yesterday about Ikoula Cloud, a regional French SP, out selling all other cloud providers in France which is surprising considering the marketshare of Amazon, MS, and Google. (link if interested)
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charliebrown (profile), 17 Jul 2014 @ 8:24am

The UN Says So? How cute!
I guess the UN hasn't yet realized that countries have been routing around it for years and years. Decades even. I mean, all these treaties and international agreements that go around the UN, makes the UN seem pretty irellevant nowadays.
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Anonymous Coward, 17 Jul 2014 @ 8:25am

"it will not be enough that the measures are targeted to find certain needles in a haystack; the proper measure is the impact of the measures on the haystack, relative to the harm threatened; namely, whether the measure is necessary and proportionate."

I like that. The proper response to "We much collect the entire haystack to find that needle" is "dude, it's a needle".
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PaulT (profile), 17 Jul 2014 @ 8:30am

Re: Fuck the UN!
"...any sane nation... must maintain its sovereignty!"

You might find this to be the reason why nations outside of the US (many of whom are also UN members) are complaining about this in the first place. If you weren't breaking the laws of every nation on the planet including your own, the UN wouldn't be getting involved.
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Anonymous Coward, 17 Jul 2014 @ 8:37am

Re: Re: Fuck the UN!
Which brings to mind how does one avoid breaking every law of another nation on the planet? Whats legal in one place is not legal in another. A certain level of segregation is necessary for humans to coexist, because it is simply NOT POSSIBLE for everyone to live along side each other. Humans are just too damn pesky, ignorant, and vile for it to ever work out. Any idea of a utopia on Earth is an extremely naive concept. People will fight over their sporting teams and who has the funniest looking hair do and which nerd is the nerdiest! When you start telling people what the can and cant do with their religion and lives then strife if not straight up war is soon to be afoot!
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Anonymous Coward, 17 Jul 2014 @ 8:38am

Re: Fuck the UN!
Maybe we should keep to ourselves if that's your stance - instead of essentially waging war on the rest of the world through espionage and spying.

The fact is, we make agreements with the rest of the world in order to maintain free trade and peace, and those agreements generally include not violating everyone's laws and pissing them off.
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Anonymous Coward, 17 Jul 2014 @ 8:39am

Re: Re: Re: Fuck the UN!
Great! then we should expect every other country to break our laws in return. And we better just shut up and take it like a man eh?

What you're asking for is world war.
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Christenson, 17 Jul 2014 @ 8:40am

Re: Wrong quote? Definitely....
The quote after the data retention sentence doesn't even cover data retention....definitely a silly copy/paste error.

Thank you Mr Masnick.
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Anonymous Coward, 17 Jul 2014 @ 8:43am

Re: Re: Fuck the UN!
You have a good case there. Our first President George Washington in his farewell address warned about us getting overly involved with foreign affairs and too entrenched with foreign economies.

Getting too involved means just what you said..."not violating everyone's laws and pissing them off". It is simply not possible to ensure peace and liberty like that. Peace has been and will always require FORCE to work, because if there is no force... then what is stop a thug from deciding that you daughter belongs in his harem. Your fists or gun? Where is the peace in that?

No America HAS TO fucking suck world cock because we allowed all of our political Elite to sell a portion of our Sovereignty off so THEY NOT US can be richer for it. We have far too much foreign interests able to harm our economy if they get really pissed off at us!

In simple terms... to the US government and its political cronies... YOUR ASS is for straight up SALE!
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Mike Masnick (profile), 17 Jul 2014 @ 8:45am

Re: Wrong quote?
The third quote seems to be the exact same as the first, and doesn't seem to mention data retention requirements.

Yup. I hate PDFs that don't obey ctrl-c properly... Got caught up in assuming the text properly copied, when it had not. Fixed now...
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Anonymous Coward, 17 Jul 2014 @ 8:48am

Re: Re: Re: Re: Fuck the UN!
did you miss either of the first two that have already happened? Did you not even pay one iota of attention in history class?

It is impossible to not break some other nations laws! Some cultures and nations believe that your wife walking around with a low cut top is enough to rape and then murder her over it.

Care to approve of that one? Better yet...

Would you go to war to PROTECT YOUR WIFE? No? War Bad? If so, you deserve the pain and affliction that will be visited upon you (not your poor wife) for having no regard for the exertions of better men putting forth efforts to protect you where you miserably have failed to secure yourself and even so would belittle others for that effort!
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Anonymous Coward, 17 Jul 2014 @ 9:08am

Re: Re:
They kinda are contrary to each other but it's not like politics ever makes any sense. Politicians are self contradictory.
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Padpaw (profile), 17 Jul 2014 @ 9:44am

that's pretty funny. I am sure convicted war criminals Obama, Bush and Clinton will care.
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Uriel-238 (profile), 17 Jul 2014 @ 10:42am

Re: Wrong quote?
The US has already dismissed the Geneva Conventions as outdated tripe. I'm pretty sure US policy regarding the UN is "do as I say, not as I do" especially since we provide for most of the UN's ability to enforce its will.

The United States administration seems to no longer give a whit about internal integrity.
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Ninja (profile), 17 Jul 2014 @ 11:34am

Re: Re: UN Legitimacy
Agreed. The UN still has a lot of credibility with the average Joe so it seems good to me that they are reporting this. And it's the kind of thing the mainstream media will parrot without question given the source. Hopefully.
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Anonymous Coward, 17 Jul 2014 @ 4:35pm

"...report from the UN, which has basically found that mass surveillance, similar to that which is carried out by the NSA and GCHQ can often violate international law."

Well, duh!
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Whatever (profile), 17 Jul 2014 @ 7:10pm

I am laughing my ass off here
I am seriously laughing at this one for a bunch of reasons.

The most important: the draft resolution is worth a read. It lists the countries that proposed this resolution, including classic fighters for human rights like Cuba and North Korea.

I can't believe that the EFF is so desperate for a win that they would even want to touch this one with a 10 foot pole.
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Gwiz (profile), 17 Jul 2014 @ 7:21pm

Re: I am laughing my ass off here
It lists the countries that proposed this resolution, including classic fighters for human rights like Cuba and North Korea.

That only means it's now a bona fide fact that the United States has lost any remaining shred of moral high ground it once had.
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That One Guy (profile), 17 Jul 2014 @ 7:22pm

Re: I am laughing my ass off here
https://yourlogicalfallacyis.com/ad-hominem
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Whatever (profile), 17 Jul 2014 @ 8:40pm

Re: Re: I am laughing my ass off here
Yup, the US lost the moral high ground. They do the same spying everyone else does.

North Korea on the other hand kills people and sends other to work camps for life for having the balls to get a non-standard haircut.

Yup, US certainly lost the moral high ground here.
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PaulT (profile), 18 Jul 2014 @ 12:16am

Re: Re: Re: I am laughing my ass off here
"a non-standard haircut."

You do realise that was revealed to be a hoax, right?

No, of course you don't. If there's one thing you hate more than not acting like a smug asshole, it's researching the facts before you spew your drivel.
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Anonymous Coward, 18 Jul 2014 @ 2:30am

Re: Re: Re: Re: I am laughing my ass off here
Whatever = My Name Here = Just Sayin' = horse with no name.
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Whatever (profile), 18 Jul 2014 @ 2:43am

Re: Re: Re: Re: I am laughing my ass off here
Oh really? Can you point out where that is? They have these nice charts of acceptable haircuts and hairstyles at every barber and hair play in North Korea, according to every report I have ever seen.

Do you have a non-onion source story to support your contrarian view?
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Anonymous Coward, 18 Jul 2014 @ 6:57am

Re: Re: Re: Re: Re: I am laughing my ass off here
FUCKING LOL @ Whatever calling someone 'contrarian'!
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Gwiz (profile), 18 Jul 2014 @ 8:38am

Re: Re: Re: I am laughing my ass off here
North Korea on the other hand kills people and sends other to work camps for life for having the balls to get a non-standard haircut.

Yup, US certainly lost the moral high ground here.

Glad you agree.

The US lost that moral high ground awhile ago when we started torturing and holding people indefinitely at Gitmo (and other places) without allowing them to face a speedy trial by their peers. We lost even more when we started executing people via drones and SEAL teams without any legal conviction whatsoever of any wrong doing.

You can call our police actions the "War on Terror" all you want, but there still isn't an official declaration of war and habeas corpus hasn't been suspended.
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PaulT (profile), 22 Jul 2014 @ 1:09am

Re: Re: Re: Re: Re: I am laughing my ass off here
" They have these nice charts of acceptable haircuts and hairstyles at every barber and hair play in North Korea, according to every report I have ever seen."

But, you won't link to these or supply any evidence, of course. You will, however, pull every claim you have out of your ass and then whine when people call you on it. Sorry, issuing a decree doesn't mean anything - provide facts.

If you have a shred of intellectual honest (doubtful), you can find hundreds of stories to debunk your claim. Here's one: http://bigstory.ap.org/article/mandatory-kim-jong-un-haircuts-baldfaced-lie. There are many others.

If you disagree, provide evidence. But, since you can't do that on such a basic propaganda story, why the hell should anyone believe you about your other geopolitical views. You clearly don't know what you're talking about. Hey, at least you're consistent.

"Do you have a non-onion source story to support your contrarian view?"

I'm not sure what's funnier. The guy who fell for an obvious hoax telling me not to look in The Onion, or the most contrarian idiot here trying to call me that name. I'm happy to agree with you on any point you have that's backed by facts, evidence, or even basic knowledge of the things you're arguing. It's not my fault you've provided no such thing as yet.
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