Four weeks on, the world still does not know exactly what legal basis the US government used to obtain a secret court order requiring Yahoo! to scan all of its users’ incoming e-mails for a string of characters the government said was associated with a terrorist group. While sources have suggested that the court issued its order under a certain provision of the Foreign Intelligence Surveillance Act, the government has refused to confirm this publicly. Additionally – despite a plea from Yahoo! – the government has so far refused to declassify the order, a stance it reiterated to Reuters this week.
This silence cannot be squared with the human rights laws that are binding upon the United States.
The International Covenant on Civil and Political Rights, a treaty to which the US is party, states that governments cannot interfere with individuals’ privacy or correspondence in an “arbitrary or unlawful” manner. The requirement that intrusions on privacy must be “lawful” means – as human rights courts and at least two UN human rights bodies have unanimously agreed – that a country’s surveillance laws must be sufficiently clear and detailed to enable the public to understand the types of circumstances in which the government may tap their phones, read their e-mails, or otherwise spy on them. Secret laws, rules, and legal interpretations cannot possibly provide this kind of clarity, as the UN Human Rights Committee has previously pointed out when taking the US to task over precisely the type of secret court order that apparently resulted in the Yahoo! e-mail scans.
Moreover, when the US executive branch refuses to disclose its legal justification for surveillance, it deprives Congress of its crucial role in preventing abuses through legislation and intelligence agency oversight. If the executive branch and the judiciary are allowed to develop their own secret interpretations of surveillance laws, what prevents them from writing themselves a blank check?
In the wake of the Yahoo! revelations, Human Rights Watch has called on tech companies to resist excessive US surveillance demands, and we have also urged the government to release the relevant court order as well as its own legal interpretations. Nothing less will do.
