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united statesThe Necessary and Proportionate Principles and the US governmentAccessAmie Stepanovich, Drew Mitnick and Kayla Robinsonwww.accessnow.orgIntroductionIn June 2013, the scale and scope of US foreignintelligence surveillance began to be revealedto the world. Over a year later, the surveillanceprogrammes described in the revelations facilitatedby Edward Snowden continue to draw theire of human rights advocates who argue the surveillanceis, among other issues, unnecessary,disproportionate, and fundamentally lacking intransparency and oversight. The attention has galvanisedpolicy makers in Washington, D.C., wherethe US Congress is moving closer to passing someversion of communications surveillance reform. TheObama administration has released a number ofreports and statements detailing its version of theoperation of US surveillance work, and defendingthe constitutionality of these programmes. Simultaneously,the administration has quietly promotedprinciples which, if implemented, would bring USsurveillance closer in alignment with internationalhuman rights law.The Obama administration’s principles providea framework for US compliance with its own statedobjectives (the US Framework). 1 The US Frameworklargely mirrors several of the International Principleson the Application of Human Rights toCommunications Surveillance (Principles), an evaluativeframework for assessing how human rightsobligations and norms apply when conductingsurveillance. 2 Below, we compare US surveillancepractices to its own stated Framework and thePrinciples.Policy and political backgroundMany US surveillance operations are authorisedunder either Section 215 of the Patriot Act (the“business records” provision), which has been1 Speech by Scott Busby at RightsCon, 4 March 2014. www.humanrights.gov/2014/03/04/state-department-on-internetfreedom-at-rightscon;Remarks to the Freedom Online CoalitionConference by US Secretary of State John Kerry, 28 April 2014.www.state.gov/secretary/remarks/2014/04/225290.htm2 https://en.necessaryandproportionate.org/textinterpreted to authorise bulk collection, or Section702 of the FISA [Foreign Intelligence SurveillanceAct] Amendments Act, which permits targeting ofnon-US persons “reasonably believed to be locatedoutside the [US]” for foreign intelligence purposes. 3Notably, the National Security Agency (NSA) presumesthat a target is a non-US person when theirlocation cannot be determined. 4The government also uses Executive Order (EO)12333 to authorise surveillance programmes wherethe collection point is located outside of the US. It iswidely believed that the government has interpretedEO 12333 to authorise any surveillance activitiesthat are not otherwise unlawful or unconstitutional.Traditionally, there has been very little public informationabout EO 12333, including any oversightthereof. According to recent reports, EO 12333 authorises,inter alia, collecting all calls made in theBahamas and another, undisclosed country. 5In March 2014, the US government adoptedsix privacy principles to govern surveillance. ScottBusby, Deputy Assistant Secretary of State for Democracy,Human Rights and Labor, articulated theUS Framework at the 2014 RightsCon Silicon Valleyconference, hosted by Access. 6 Secretary of StateJohn Kerry reiterated the US Framework at a recentFreedom Online Coalition conference. 7A closer look at the US Frameworkfor surveillancePrior to the release of the US Framework, a numberof government reports made recommendationsencompassing several human rights principles.The President’s Review Group on Intelligence andCommunications Technologies (President’s Review3 50 U.S.C. § 1881a (2008).4 The Guardian. (2013, June 20). Procedures used by NSA to targetnon-US persons: Exhibit A – full document. The Guardian. www.theguardian.com/world/interactive/2013/jun/20/exhibit-aprocedures-nsa-document5 Devereaux, D., Greenwald, G., & Poitras, L. (2014, May 19). The NSAis recording every cell phone call in the Bahamas. The Intercept.https://firstlook.org/theintercept/article/2014/05/19/datapirates-caribbean-nsa-recording-every-cell-phone-call-bahamas6 Speech by Scott Busby at RightsCon, 4 March 2014. www.humanrights.gov/2014/03/04/state-department-on-internetfreedom-at-rightscon7 Remarks to the Freedom Online Coalition Conference by USSecretary of State John Kerry, 28 April 2014. www.state.gov/secretary/remarks/2014/04/225290.htmGroup) released a report that included a numberof recommendations in line with the Principles:transparency in the operation of the US surveillanceprogrammes; due process reforms for the ForeignIntelligence Surveillance Court (FISC); and moreeffective government oversight. 8 The Privacy andCivil Liberties Oversight Board (PCLOB) separatelyreleased a report arguing that bulk metadata collectionis illegal under the terms of Section 215 andcalled for the creation of a special advocate to argueagainst the government before the FISC. 9 Theserecommendations could help guide the implementationof the US Framework and ensure compliancewith its commitments.The US Framework expands upon PresidentObama’s Presidential Policy Directive 28 (PPD-28)which establishes principles to guide surveillance. 10The six principles endorsed by the US are (1) ruleof law, (2) legitimate purpose, (3) non-arbitrariness,(4) competent external authority, (5) meaningfuloversight, and (6) increased transparency anddemocratic accountability. While the US Frameworkborrows heavily from the Principles, it omits severalof them, and even in the case of those it adopts itoften fails to meet the same standards. Principlesnot adopted by the US include due process, usernotification, integrity of communications and systems,safeguards for international cooperation, andsafeguards against illegitimate access.Below, we examine the overlap between the USFramework and the Principles and examine whereUS policy fails to comply with the US Framework:1. Rule of law – In his speech setting out the USFramework, Assistant Secretary Busby discussedhow surveillance operates “pursuantto statutes and executive orders that were adoptedas part of our democratic process.” Thisprinciple further requires that laws, and theirsubsequent policies, provide clarity for individualswithin the jurisdiction. US surveillancepolicy has proven to be anything but clear andaccessible to the public. Instead, surveillancepractices often depend on loose legal interpretationswritten in secret, approved by secret8 Report and Recommendations of the President’s Review Groupon Intelligence and Communications Technologies: Liberty andSecurity in a Changing World, 21 December 2013. www.whitehouse.gov/sites/default/files/docs/2013-12-12_rg_final_report.pdf9 Privacy and Civil Liberties Oversight Board. (2014). Report on theTelephone Records Program Conducted under Section 215 of theUSA PATRIOT Act and on the Operations of the Foreign IntelligenceSurveillance Court. www.pclob.gov/SiteAssets/Pages/default/PCLOB-Report-on-the-Telephone-Records-Program.pdf10 Office of the Press Secretary. (2014). Presidential PolicyDirective/PPD-28. www.whitehouse.gov/sites/default/files/docs/2014sigint_mem_ppd_rel.pdfcourts, and overseen by secret Congressionalcommittees. By contrast, the Principles requirethat the law contains a “standard of clarity andprecision” to provide users notice of the applicationof surveillance.US surveillance policy does not conform with therule of law principle. For example, Section 215permits collection of records only when they are“relevant to an authorized investigation.” However,authorities have interpreted the language to permitthe acquisition of all phone records transitingthe US. Similarly, Section 702 contains languagethat is overly vague, granting the Attorney Generaland Director of National Intelligence (DNI) the authorityto “target persons reasonably believed tobe located outside the United States to acquireforeign intelligence information.” Programmes underthis authority, namely PRISM and “Upstream”collection, 11 involve virtually limitless surveillanceon any non-US person outside the US, and, by extension,“incidental” collection of vast amounts ofdata from US persons.2. Legitimate purpose – The US Framework wouldpermit surveillance only on the “basis of articulableand legitimate foreign intelligenceand counter-intelligence purposes.” This doesnot match the standard of the legitimate aimprinciple, which requires surveillance to beconducted only in the furtherance of a “predominantlyimportant legal interest that isnecessary in a democratic society.” Further,PPD-28 permits bulk collection only for “detectingand countering” certain enumeratedthreats, and expressly prohibits the use of bulkcollection for suppression of dissent, discrimination,or promoting US commercial interests.However, no similar restriction is placed onother non-bulk, yet highly intrusive forms ofsurveillance authorised under Section 702.The government should specify – and identifymeaningful limits to – the purposes for which itacquires and collects foreign intelligence.3. Non-arbitrariness – Non-arbitrariness, as articulatedby the US Framework, requiressurveillance to be tailored and intrusivenessminimised. This element matches up to the proportionality,necessity and adequacy principles.11 Some slides used by the NSA revealed by Edward Snowden makea distinction between the “PRISM” and “Upstream” collectionprogrammes. While we will use that shorthand in this submission,our understanding is that “Upstream” encompasses a widerange of surveillance programmes that have been revealed todate, including BLARNEY, FAIRVIEW, OAKSTAR, LITHIUM, andSTORMBREW.262 / Global Information Society Watch united states / 263