US must prioritise right to privacy and right to free expression and media on Monday's human rights review


UOn 11 May, the USA will undergo a review of its human rights record before the United Nations in Geneva. Foremost amongst UN and civil society concerns is the continued practice of mass surveillance by the NSA, a gross violation of the rights to free expression and privacy. Just one week ahead of the review, the NSA’s mass phone surveillance has been ruled illegal by a federal court.

PEN International, PEN American Center and the Committee to Project Journalists (CPJ) documented in detail these concerns in our joint report  to the UN ahead of the review and in our oral advocacy before the Human Rights Council states last month.

This research has found that the U.S. government’s aggressive prosecutions of leakers of classified information, broad electronic surveillance programs, and moves to stem the routine disclosure of information to the press have created a chilling effect on journalistic reporting and free speech and have made the Obama administration one of the most closed-off administrations in recent U.S. history. This administration has sought to champion press and Internet freedom globally, but cannot do so effectively if its record is being consistently challenged. By diminishing its international standing as an example of press freedom and free expression, the U.S. has weakened its ability to advocate for these issues around the world.

Crackdown on Journalists and Whistle Blowers

  • Since the last review in 2010, the United States has increasingly subpoenaed journalists and media sources generating concern for freedom of expression.
  • Prosecutions under the 1917 Espionage Act have reached unprecedented levels. Since 2009, the Obama administration has prosecuted, as criminal felonies, eight leaks of classified information to the press. This is compared to three prosecutions under all previous presidents.
  • Journalists and media outlets have also been ensnared in leak investigations and prosecutions. In 2013, the Justice Department secretly seized all records for 20 of the Associated Press’ telephone lines and switchboards during an investigation into leaked confidential information. After being widely criticized for targeting journalists, the Justice Department revised its guidelines on press subpoenas and the Senate revived a debate on a federal shield law that would allow journalists greater protection for their sources. The revised guidelines however were slowly implemented.
  • The result of the aggressive prosecutions of leakers, and policies enacted to reveal and stem leaks has been an intense chilling effect on officials who now fear any unauthorized contact with the press.
  • PEN International calls on the US government to:
  • Affirm and guarantee that journalists will not be at legal risk or prosecuted for receiving confidential and/or classified information.
  • Be more forthcoming about the scope and nature of the National Security Agency’s and other surveillance activities as they are being applied to domestic and international journalists. Issue a presidential policy directive limiting the surveillance of journalists’ communications to ensure the integrity of a journalist’s right to protect his or her sources.
  •  Implement revised Justice Department guidelines and prevent the filing of unnecessary, overly broad, and/or secret subpoenas to obtain journalists’ records.
  •  End the practice of bringing espionage charges against people who leak classified information to journalists, which could create a severe chilling effect and thwart the free flow of information on matters of public interest.
  •  Make good on promises to increase transparency of government activities and end government intimidation of officials who might speak to the press. Enforce prompt and less restrictive responses to FOIA requests and more systematic and far-reaching efforts to reduce over-classification. Encourage administration officials to be open and responsive to press inquiries.

Surveillance

Mass surveillance in the United States is creating one of the biggest obstructions to freedom of expression in modern times.

The United States accepted, in part, two recommendations pertaining to surveillance after its 2010 Universal Periodic Review, including recommendations that it:

  • Legislate appropriate regulations to prevent the violations of individual privacy as well as eavesdropping of communications, by its intelligence and security organizations.
  • Guarantee the right to privacy and stop spying on its citizens without judicial authorization.

Regardless of these acknowledgments the U.S. government’s collection and storage of not only metadata on, but also the content of, the communications of millions of people around the world intrudes upon a personal zone of privacy that is essential to freedom of expression and association, and creates a powerful chilling effect on free expression. The fact that the public does not know precisely what is done with the communications information gathered further adds to the chill. PEN American Center’s research report, Global Chilling: The Impact of Mass Surveillance on International Writers , demonstrates that mass surveillance is prompting writers to engage in self-censorship in their communications and writing, a deeply troubling bellwether for free expression.

The Edward Snowden revelations exposed far more than was previously known about the breadth and scope of the NSA’s mass surveillance operations. The full extent of U.S. surveillance is completely unknown but such indiscriminate collection, retention and sharing of personal and sensitive data poses a unique threat to journalism in the digital age. Such practices create an atmosphere of fear and apprehension hindering contacts between American journalists and government officials, and cast doubt on journalists’ ability to protect the identity of their sources.

The threat to journalistic freedom and integrity is compounded by the lack of controls on information sharing with foreign governments, which may use such information to suppress dissent, discriminate, or commit other human rights abuses. As a result, many journalists have started using privacy-protective technologies such as encryption, which can be labour-intensive and impair journalists’ ability to freely gather and disseminate information.

PEN International calls on the US government to:

  • Recognize a legal duty to respect and ensure the right to privacy and other human rights of persons outside its territory when it acquires, processes, uses, stores or shares their digital communications and data.
  • Recognize that, under international law, any interference with the right to privacy (including any surveillance activity) must be a necessary and proportionate means of pursuing a legitimate governmental aim, and minimally intrusive of protected interests.
  • Recognize that any interference with the right to privacy (for example, selection of targets for surveillance) must be consistent with the prohibition against discrimination on protected grounds (such as those listed in Article 2(1) of the ICCPR).

To read PEN’s shadow report to the UN, click here