Surveillance, Human Rights and the Role of States: Rousseff’s Speech and Peña Nieto Silence

by Digital Rights LAC on October 18, 2013


By Renata Avila

Brazil will propose an initiative before the UN for an International `Marco Civil` for the Internet. Other Latin American leaders have joined diplomatic efforts to ensure respect for human rights and international law, a rare occasion in which political, diplomatic, and human rights agendas in many countries are converging at the same time. Can the region lead the change necessary to prevent the advance of mass surveillance?

The defenselessness of information on foreign citizens and diplomacy as the only answer (so far)

Since April 2013, a series of revelations on the massive and covert surveillance of the National Security Agency of the United States of America have shaken political and diplomatic agendas in Latin America. In September 2013, the conflict escalated to the highest level.

Evidence of spying, not only on the masses, but rather, on heads of government of Mexico and Brazil and strategic sectors such as energy-oil (including the Ministry of Energy and Mines of Brazil, even with the complicity of its equivalent in Canada), has forced the mandatory response of these countries to rise to a higher diplomatic and political level, using both regional and international mechanisms.

Resolutions of MERCOSUR, UNASUR, ALBA, and others presented before the Security Council of the United Nations and the Secretary General of the United Nations in recent months, called for the defense of privacy and sovereignty as well as respect for the rules of public international law which explicitly prohibit behaviors that threaten the enjoyment and exercise of human rights. However, the events of September open the door to concrete actions that could result in prosecution and penalties for the governments concerned, once confirmed that the acts of espionage were indeed executed by the National Security Agency of the United States, targeting strategic sectors of Brazil, and their highest authorities, monitoring every electronic communication of the President-elect of Brazil, Dilma Rousseff, and the then candidate for president of Mexico, Enrique Peña Nieto.

The Charter of the Organization of American States, of which the United States and Canada are members, establishes that international law should be the standard of conduct of the United States in their reciprocal relations and that good faith shall govern relations between the states. The Charter has yet to address these countries’ aforementioned violations of the organization’s principles, which could lead to their suspension from the Charter.

Rousseff reacted strongly in her speech before the General Assembly of the United Nations, in which she qualified acts of surveillance and espionage as massive affronts to international law, the principles that should govern relations between States, civil rights, and national sovereignty. She described the activities routinely carried out by the NSA as attacks on freedom on freedom of expression, democracy and relations between nations.

Opportunity for Dialogue and Joint Action

On the other side are Latin American citizens who, although they have received with sympathy and solidarity the force with which some governments have defended their right to not be monitored by foreign intelligence agencies, know those same governments reserve the prerogative to execute mass domestic surveillance. Low standards of privacy protection in each country and weak or nonexistent data protection authorities are outstanding problems in national agendas. While authorities are objecting mass surveillance by a third State, their citizens are asking that the same restrictions to indiscriminate mass surveillance be applied at home.

The unprecedented understanding of the threat which vigilance poses to everyone has generated a positive effect: proposals for the protection of privacy and petitions for a better accountability of intelligence agencies are being heard by executive and regional parliaments. The “International Principles on the Application of Human Rights to Communications Surveillance”, recently presented before the UN Human Rights Council and open to member countries, is an example of the opportunity to promote the highest standards in the region. The establishment of working groups to study the impact of and possible solutions to mass surveillance, newly installed at ALBA, MERCOSUR and the UNASUR Security Council, offer another advocacy and outreach opportunity among international experts, promoters of human rights, the technical community and civil society to develop the best possible framework, as long political will currently exists, a will that can fade as soon as the news fades from the headlines.
The President of Brazil, Dilma Rousseff, has announced through her Twitter account the proposal of the International `Marco Civil` for the Internet, which seeks to protect the rights of all citizens around the world. This proposal would be sent to the UN and would also await the approval of a new version of the `Marco Civil`, which would expand the guarantees of privacy for citizens. Brazil appears to be establishing itself as the country that leads the global response to the war on citizens’ privacy.
The main obstacle to these regional initiatives could be the blockage by a group of countries aligned with this model of surveillance, which may have similar agreements with the NSA and DEA. This is reflected in the silence of Peña Nieto and the lack of a tough response to the revelations of direct espionage in countries dependent on military and police aid to fight the “war on drugs.” It is precisely the citizens of these countries more than anyone else who would benefit from the adoption of a regional and even global mass surveillance protection framework against arbitrary, mass surveillance, which, thus far, violates international and local regulations with impunity. For vulnerable groups, such as journalists and activists in Mexico, Honduras and Colombia, surveillance and protection against it is a matter of life or death.
Most part of the region shows the most favorable legal frameworks for cryptography worldwide. It is a peaceful and young region that confronts the possibility of offering its leaders the chance to stand up for a robust Internet that ensures maximum enjoyment of all rights as well as economic and technological potential, which will lead to greater and better human development even for marginal sectors. It is time to move from protest to proposal, and from proposal to action.

[This work was carried out as part of the Cyber Stewards Network with the aid of a grant from the International Development Research Centre, Ottawa, Canada]