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Last week’s post by Megan Graham is certainly a welcome contribution in explaining the implications of the Max Schrems case by the European Union Court of Justice, and specifically how it relates to the Safe Harbor arrangement between the US and the EU. Let me add a different perspective: Irrespective of its consequences for Safe Harbor, last week’s ruling is hugely important on a more general level, namely for the understanding of what the right to privacy entails in Europe and what this means for mass surveillance. Through its ruling in Max Schrems the EU’s highest court has established that: Mere access by public authorities to confidential or group-specific communications data constitutes an intrusion into the right to privacy, even without any further processing of that data; and While indiscriminate intrusion into “metadata” may constitute a particularly serious intrusion into the right to privacy, access to “content” data will affect the essence of the right to privacy.

These findings were made under Article 7 of the EU Charter of Fundamental Rights, a broad provision on the right to respect for one’s private life. This provision of the EU Charter, which is a part of the foundational treaty framework of the European Union, is almost identical to Article 8 of the European Convention on Human Rights, a treaty legally binding for broader Europe and routinely a part of domestic legal orders. It remains to be seen whether the guardian of the latter framework, the European Court of Human Rights, will also be courageous enough to determine that indiscriminate mass surveillance that provides access to “content” data breaches the essential core of the right to privacy. The highest EU court already took that bold step. One of the most important implications of identifying government access to content as breaching the essence of the right to privacy, is that it negates the need for a proportionality assessment. Measures that compromise the essence of privacy have already crossed a red line, and there is no need for any further “balancing” between privacy and security. Therefore, the Max Schrems ruling is a huge blow to many of the current methods of electronic mass surveillance, including those practiced by the US and several European countries (including the United Kingdom).

Several additional points from my earlier post in Verfassungsblog about this case are also worth noting. First, the EU court did not really dwell on the separate Article 8 provision of the EU Charter on Fundamental Rights, concerning the right to the protection of personal data. This was perhaps because that provision is triggered by the “processing” of data, while the general privacy (Article 7) impact comes into play through mere “access.” Another point is that while it was easy to establish the jurisdiction of the EU court over data transfers from Europe to Facebook’s servers in the US, it may be much harder to bring a case before that court concerning “upstream” methods of mass surveillance, such as the NSA’s tapping of transatlantic fiber optic telecommunications cables. Perhaps most importantly, the substantive ruling in the Schrems case is formulated in a way that it would apply to any method of mass surveillance that gives public authorities access to the content of ordinary people’s private communications, including communications intended for a group of people but not for the authorities. Hence, the ruling is a major contribution as to what the right to privacy substantively means in Europe.

As Arizona, California, Maine, Massachusetts, and Nevada prepare to vote on the legalization of marijuana for adults 21 and over in a few weeks, all eyes are on the initial outcomes of those states that have already legalized marijuana. A new report from the Drug Policy Alliance finds a massive drop in marijuana arrests, no increase in youth marijuana use, no increase in traffic fatalities, and major fiscal benefits in states with legalized marijuana.

The new report reveals that statewide surveys of youth in Colorado, Washington, Alaska, and Oregon found that there were no significant increases in youth marijuana use post-legalization. Tax revenues in Colorado, Washington, and Oregon have all exceeded initial revenue estimates, totaling half a billion dollars in new revenue for those states. (Retail sales have not yet begun in Alaska.) Legalization has not led to more dangerous road conditions, as traffic fatality rates have remained stable in Colorado, Washington, Alaska, and Oregon. Arrests in all states and Washington, D.C. have plummeted since legalization, saving those jurisdictions millions of dollars and preventing the criminalization of thousands of people. Legalization, however, did not abate the disproportionate enforcement of marijuana laws against black people. While thousands less are being arrested, blacks are still arrested at vastly disproportionate rates, even though white people use and sell marijuana at similar rates. By shifting away from counterproductive marijuana arrests and focusing instead on public health, states that have legalized marijuana are diminishing many of the worst harms of the war on drugs, while managing to raise substantial new revenue for their state.

You are here: WorldLII >> About WorldLII   What is WorldLII? The World Legal Information Institute (WorldLII) is a free, independent and non-profit global legal research facility developed collaboratively by the following Legal Information Institutes and other organisations. Australasian Legal Information Institute (AustLII) British and Irish Legal Information Institute (BAILII) Canadian Legal Information Institute (CanLII) Hong Kong Legal Information Institute (HKLII) Legal Information Institute (Cornell) (LII (Cornell)) Pacific Islands Legal Information Institute (PacLII) Wits University School of Law (Wits Law School) For further details, see the WorldLII brochure. The LIIs, meeting in Montreal in October 2002, adopted the Montreal Declaration on public access to law. WorldLII comprises three main facilities: Databases, Catalog and Websearch.

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Justice Against Sponsors of Terrorism Act This bill amends the federal judicial code to narrow the scope of foreign sovereign immunity by authorizing U.S. courts to hear cases involving claims against a foreign state for injuries, death, or damages that occur inside the United States as a result of a tort, including an act of terrorism, committed anywhere by a foreign state or official. It amends the federal criminal code to permit civil claims against a foreign state or official for injuries, death, or damages from an act of international terrorism. Additionally, the bill authorizes federal courts to exercise personal jurisdiction over and impose liability on a person who commits, or aids, abets, or conspires to commit, an act of international terrorism against a U.S. national.

A coalition of 26 organizations, including the American Civil Liberties Union (ACLU) and Google, signed a letter Monday asking lawmakers to delay a measure that would expand the government’s hacking authority. The letter asks Senate Majority Leader Mitch McConnellMitch McConnellTrump voices confidence on infrastructure plan GOP leaders to Obama: Leave Iran policy to Trump GOP debates going big on tax reform MORE (R-Ky.) and Minority Leader Harry ReidHarry ReidNevada can’t trust Trump to protect public lands Sanders, Warren face tough decision on Trump Google, ACLU call to delay government hacking rule MORE (D-Nev.), plus House Speaker Paul RyanPaul RyanTrump voices confidence on infrastructure plan GOP leaders to Obama: Leave Iran policy to Trump GOP debates going big on tax reform MORE (R-Wis.), and House Minority Leader Nancy Pelosi (D-Calif.) to further review proposed changes to Rule 41 and delay its implementation until July 1, 2017. ADVERTISEMENTThe Department of Justice’s alterations to the rule would allow law enforcement to use a single warrant to hack multiple devices beyond the jurisdiction that the warrant was issued in. The FBI used such a tactic to apprehend users of the child pornography dark website, Playpen. It took control of the dark website for two weeks and after securing two warrants, installed malware on Playpen users computers to acquire their identities. But the signatories of the letter — which include advocacy groups, companies and trade associations — are raising questions about the effects of the change. 

As U.S. President Donald Trump ramps up his attack on immigration, his executive order to cut federal funding to so-called “sanctuary cities” protecting immigrants could face a number of legal and logistical loopholes.

The executive order signed on Wednesday orders federal agencies to withhold grant money from around 300 cities and counties that block local law enforcement from targeting undocumented immigrants, or as White House Press Secretary Sean Spice put it, “harbor illegal immigrants.” Spicer said that Trump will look at means to strip funding to cities and counties that “willfully refuse to comply” with his new plan to crack down on immigration, which also included ordering the construction of the infamous border wall between Mexico and the U.S. and increasing immigration authorities' power to deport people from the U.S., often without due process. These measures have sparked outrage among many immigrant rights organizations and caused city mayors to speak out against them. Opponents likely have the law on their side. Politico reported that the White House failed to consult the proper federal agencies and lawmakers before signing the executive orders. This means the orders are likely fraught with contradictions to current laws that can be easily exploited by opponents to dismantle them. The legal fight has already begun. Mayors of targeted cities are teaming up with immigration advocacy groups and attorneys to gear up for a legal battle against the presidential orders. Opponents of Trump’s order say that federal money allocated to cities can only be cut if the funding is directly linked to behavior that opposes the federal government’s plan for immigration.

Trump's plan to make police and other key services exempt from any funding cuts has also sparked legal debate. Trump had previously stated that even if a city was stripped of funding for non-compliance, police departments' funding would not be cut. Opponents also say that making police exempt would make it possible for a judge to deem parts of the order unconstitutional. Richard Doyle, city attorney in San Jose, California, argues that Trump cannot cut a city's funding for healthcare and education while protecting the police force from cuts because its function relates more closely to immigration enforcement, adding that it was uncertain whether only future or existing federal funding would be targeted under the order. Others have argued that there would be significant barriers and a long process for the federal government to cut off funding to sanctuary cities that would first have to go through states and local government where targeted jurisdictions have rights to appeal. Edward Waters from Feldesman Tucker Leifer Fidell in Washington told Reuters that for the Trump administration, “It’s fair to say that they don't understand the scope and reach of federal grants law.”

group of investigative journalists made live the names of thousands of offshore companies based on a massive trove of data on the finances of the rich and powerful that has become known as the Panama Papers.The International Consortium of Investigative Journalists made data on 200,000 entities available on Monday at 1 p.m. CT on its website. They contain basic corporate information about companies, trusts and foundations set up in 21 jurisdictions including Hong Kong and the U.S. state of Nevada. The data was obtained from Panamanian law firm Mossack Foneca, which said it was hacked.Users can search the data and see the networks involving the offshore companies, including, where available, Mossack Fonseca's internal records of the true owners.

It won't be the full cache of data commonly known as the Panama Papers, since the database will exclude information and documents on bank accounts, phone numbers and emails.The ICIJ said it was putting the information online "in the public interest" as "a careful release of basic corporate information" as it builds on an earlier database of offshore entities.Setting up an offshore company is not by itself illegal or evidence of illegal conduct, and Mossack Fonseca said it observed rules requiring it to identify its clients.But anti-poverty campaigners say shell companies can be used by the wealthy and powerful to shield money from taxation, or to launder the gains from bribery, embezzlement and other forms of corruption. The Group of 20 most powerful economies has agreed that individual governments should make sure authorities can tell who really owns companies, but implementation in national law has lagged.

Saudi Arabia has warned the Obama administration and federal legislators that it will sell off U.S. Treasury debt worth $750 billion if Congress passes a law clearing the way for 9/11 victims to sue the kingdom for its alleged role in aiding the hijackers. according to a story in today’s New York Times.

Appearing on Michael Smerconish’s CNN program Saturday morning, former Senator Bob Graham, a leading advocate of declassifying 28 pages that allegedly implicate Saudi Arabia in the attacks, said, “I’m outraged but not surprised.” According to the Times report, the kingdom’s caution was personally delivered last month by Saudi foreign minister Adel al-Jubeir, who reportedly told legislators that, if the bill passes, Saudi Arabia would sell up to $750 billion in Treasury debt before it could be potentially frozen by U.S. courts.

Though presented as a necessity for Saudi Arabia’s own financial protection, Saudi Arabia’s cautionary statement is de facto economic threat against the United States. A sell-off would prompt an increase in U.S. Treasury interest rates, raising borrowing costs for the American government, businesses and consumers and potentially triggering an economic downturn that extends beyond our own shores. The Saudi warning was triggered by the legislative progress of the Justice Against Sponsors of Terrorism Act (JASTA), which would amend the Foreign Sovereign Immunities Act (FSIA). Last fall, Saudi Arabia was dropped from a lawsuit filed by 9/11 families, victims and insurers after a federal judge said the plaintiffs had failed to meet the high jurisdictional hurdles that FSIA imposes for claims against foreign governments.

The American army conducted experiments with biological weapons aimed at destroying rice crops on the Japanese island of Okinawa in the 60s, Kyodo news agency reports. The alleged target of the tests was the China and Southeast Asia region. Citing classified US documents, Japanese news agency Kyodo said the US military carried out experiments on their sovereign territory between 1961 and 1962. At this time Japan’s southern island of Okinawa was still under post-WWII, US jurisdiction. The US did similar tests in Taiwan and the American mainland, notes Kyodo.

"Field tests for stem rust of wheat and rice blast disease were begun at several sites in the (US) Midwest and south and in Okinawa with partial success in the accumulation of useful data," wrote Kyodo, citing its documents.

Do you, like 56 percent of the US population, believe that the US should "not get too involved" in the Ukraine situation? Do you think that the US administration putting us on a war footing with Russia is a bad idea? Are you concerned that the new, US-backed leaders of Ukraine -- not being elected -- might lack democratic legitimacy? Are you tempted to speak out against US policy in Ukraine; are you tempted to criticize the new Ukrainian regime?Be careful what you say. Be careful what you write. President Obama has just given himself the authority to seize your assets.According to the president's recent Executive Order, "Blocking Property of Certain Persons Contributing to the Situation in Ukraine" (first reported by WND's Aaron Klein), the provisions for seizure of property extend to "any United States person." That means "any United States citizen, permanent resident alien, entity organized under the laws of the United States or any jurisdiction within the United States (including foreign branches), or any person in the United States."

Declaring a "national emergency" over the planned referendum in Crimea to determine whether or not to join Russia, the US president asserts that asset seizure is possible for any US person "determined by the Secretary of the Treasury, in consultation with the Secretary of State": (i) to be responsible for or complicit in, or to have engaged in, directly or indirectly, any of the following:  (A) actions or policies that undermine democratic processes or institutions in Ukraine;  (B) actions or policies that threaten the peace, security, stability, sovereignty, or territorial integrity of Ukraine; or  (C) misappropriation of state assets of Ukraine or of an economically significant entity in Ukraine; The Executive Order is, as usual, so broadly written that it leaves nearly everything open to interpretation.

For example, what are "direct or indirect...actions or policies that threaten the peace, security, stability, sovereignty, or territorial integrity of Ukraine"? Could that be someone writing an article that takes issue with the US policy that the Crimea referendum is illegal and illegitimate? Could it be standing up in a public meeting and expressing the view that Ukraine would be better off with nationwide referenda to determine whether other regions should become autonomous or joined to neighboring countries? What if a Polish-American appears on a radio or television program suggesting that parts of Poland incorporated into Ukraine after WWII should be returned to Polish authority?Probably the president will not seize the assets of Americans in the scenarios above. But he says he can.As the US government moves ever-closer to war with Russia, it is reasonable to expect these attempts to squash dissent and to remove "threats" to the administration's position. The historical pattern is clear.

A record $100 billion in withdrawals of Treasury bills is raising speculation that the Kremlin and Russian oligarchs are yanking their money out of the United States to avoid upcoming sanctions over Ukraine. The massive outflow over the past week came as President Obama and other top US officials repeatedly warned Russia would face a “cost” if it didn’t reverse course in Ukraine. The total amount of foreign-held US Treasury securities dropped to $2.86 trillion — lowest in more than a year. Last year, the most moved out in a week was $32 billion.

Analysts said that if the switch was made by Russia, it would represent about 80 percent of that nation’s US Treasury holdings. “This is only speculation on our part, but it seems likely that the Russian authorities had more than $100 billion of Treasury debt in custody at the Fed, and it doesn’t seem implausible that they moved it to a jurisdiction where it would be less vulnerable to a US asset freeze,” Lou Crandall at Wrightson ICAP LLC told The Wall Street Journal.

The European Parliament on Thursday adopted a joint, cross-party resolution to begin investigations into widespread surveillance of Europeans by the U.S. National Security Agency (NSA). Read this EU to vote to suspend U.S. data sharing agreements, passenger records amid NSA spying scandal Read more In the vote, 483 voted for the resolution, 98 against, and 65 abstained on a vote that called on the U.S. to suspend and review any laws and surveillance programs that "violate the fundamental right of EU citizens to privacy and data protection," as well as Europe's "sovereignty and jurisdiction." The vote also gave backing to the suspension of data sharing deals between the two continents, should the European Commission take action against its U.S. ally.

The U.S. government faces continued criticism and pressure from its international allies following news that its intelligence agencies spied on foreign nationals under its so-called PRISM program. The U.K. government was also embroiled in the NSA spying saga, after its signals intelligence intercepting station GCHQ tapped submarine fiber optic cables under its own secret program, code named Tempora. Reuters reported on Wednesday that the Commission is examining whether the U.K. broke EU law, which could lead to fines imposed by the highest court in Europe.

Should the Commission decide it necessary to suspend the data sharing agreement of passenger details — including personal and sensitive individual data — it could ultimately lead to the grounding of flights between the EU and the U.S. Dutch MEP Sophie in 't Veld said in a statement after the vote: "We must consider now if the PNR and SWIFT agreements are still tenable in the circumstances." Critics say PNR data has never helped catch a suspected criminal or terrorist before. SWIFT data sharing, which provides U.S. authorities with secure banking details in a bid to crack down on terrorist financing, could also be suspended. A spokesperson for the D66 delegation in Brussels confirmed by email that the English version of the joint motion is "the right one and is leading," despite claims that there were "translation error[s]" between the different versions of the joint resolution.

In fact, there is an option in the system settings called "Collection of watching info:" which is set ON by default.  This setting requires the user to scroll down to see it and, unlike most other settings, contains no "balloon help" to describe what it does.

At this point, I decided to do some traffic analysis to see what was being sent.  It turns out that viewing information appears to be being sent regardless of whether this option is set to On or Off.

Here you can clearly see that a unique device ID is transmitted, along with the Channel name "BBC NEWS" and a unique device ID. Here is another example of a viewing info packet.

The EU and the US should fully investigate the CIA’s “extraordinary” and “lawless” rendition program, the Council of Europe’s human rights commissioner said in a statement marking the 12th anniversary of the 9/11 attacks.

He urged the court to further expose “the lawlessness that has characterized the CIA program” by examining complaints lodged by Guantanamo Bay detainees Abu Zubaydah and Al Nashiri against Poland and Lithuania, and Poland and Romania, respectively. The suspected terrorists, both of whom are being held in the Guantanamo prison camp, claim that the aforementioned states had failed to properly conduct investigations “into the circumstances surrounding their ill-treatment, detention and transfer to the USA.” Citing a report published by Open Society Justice Initiative, Muižnieks added that 25 European countries have collaborated with the CIA, but Italy was the only state thus far to hand down a conviction for the kidnapping and rendition of a Muslim cleric.

“It is imperative to take urgent political and judicial initiatives in member States to lift the veil of secrecy Governments have drawn over their responsibilities,“ Muižnieks said in a call to action. “The CIA program of rendition and secret detention is not simply a grave political mistake: it is above all a serious violation of fundamental human rights. The continued impunity breeds contempt for democracy and the rule of law, as well as disrespect for the victims and values in whose name the fight against terrorism was carried out. It is high time to set the record straight.” The efficacy of Muižnieks’ call remains to be seen, as the Council of Europe is a separate body from the European Union and its 47 members include Russia and other non-EU members.

Fueled by the Edward Snowden scandal, more Americans than ever are asking the National Security Agency if their personal life is being spied on.And the NSA has a very direct answer for them: Tough luck, we're not telling you.Americans are inundating the NSA with open-records requests, leading to an 888% increase in such inquiries in the past fiscal year. Anyone asking is getting a standard pre-written letter saying the NSA can neither confirm nor deny that any information has been gathered."This was the largest spike we've ever had," said Pamela Phillips, the chief of the NSA Freedom of Information Act and Privacy Act Office, which handles all records requests to the agency. "We've had requests from individuals who want any records we have on their phone calls, their phone numbers, their e-mail addresses, their IP addresses, anything like that."

News reports of the NSA's surveillance program motivates most inquirers, she said.During the first quarter of the NSA's last fiscal year, which went from October to December 2012, it received 257 open-records requests. The next quarter, it received 241. However, on June 6, at the end of NSA's third fiscal quarter, news of Snowden's leaks hit the press, and the agency got 1,302 requests.In the next three months, the NSA received 2,538 requests. The spike has continued into the fall months and has overwhelmed her staff, Phillips said

The first court challenge to the federal government's mass surveillance of Americans' phone and Internet records opened Monday with two potential strikes against it, but the judge predicted it could go all the way to the Supreme Court.Federal District Court Judge Richard Leon expressed concern that conservative activist Larry Klayman and others lacked standing to bring the case and that his court lacked jurisdiction -- factors that could further insulate the spy programs from public oversight."To me, this is the overarching question," Leon said, referring to "this court's authority or lack thereof to inject itself into this situation."

All existing data sharing agreements between Europe and the US should be revoked, and US web site providers should prominently inform European citizens that their data may be subject to government surveillance, according to the recommendations of a briefing report for the European Parliament. The report was produced in response to revelations about the US National Security Agency (NSA) snooping on internet traffic, and aims to highlight the subsequent effect on European Union (EU) citizens' rights.

The report warns that EU data protection authorities have failed to understand the “structural shift of data sovereignty implied by cloud computing”, and the associated risks to the rights of EU citizens. It suggests “a full industrial policy for development of an autonomous European cloud computing capacity” should be set up to reduce exposure of EU data to NSA surveillance that is undertaken by the use of US legislation that forces US-based cloud providers to provide access to data they hold.

To put pressure on the US government, the report recommends that US websites should ask EU citizens for their consent before gathering data that could be used by the NSA. “Prominent notices should be displayed by every US web site offering services in the EU to inform consent to collect data from EU citizens. The users should be made aware that the data may be subject to surveillance by the US government for any purpose which furthers US foreign policy,” it said. “A consent requirement will raise EU citizen awareness and favour growth of services solely within EU jurisdiction. This will thus have economic impact on US business and increase pressure on the US government to reach a settlement.”

The United States and its key intelligence allies are quietly working behind the scenes to kneecap a mounting movement in the United Nations to promote a universal human right to online privacy, according to diplomatic sources and an internal American government document obtained by The Cable. The diplomatic battle is playing out in an obscure U.N. General Assembly committee that is considering a proposal by Brazil and Germany to place constraints on unchecked internet surveillance by the National Security Agency and other foreign intelligence services. American representatives have made it clear that they won't tolerate such checks on their global surveillance network. The stakes are high, particularly in Washington -- which is seeking to contain an international backlash against NSA spying -- and in Brasilia, where Brazilian President Dilma Roussef is personally involved in monitoring the U.N. negotiations.

The Brazilian and German initiative seeks to apply the right to privacy, which is enshrined in the International Covenant on Civil and Political Rights (ICCPR), to online communications. Their proposal, first revealed by The Cable, affirms a "right to privacy that is not to be subjected to arbitrary or unlawful interference with their privacy, family, home, or correspondence." It notes that while public safety may "justify the gathering and protection of certain sensitive information," nations "must ensure full compliance" with international human rights laws. A final version the text is scheduled to be presented to U.N. members on Wednesday evening and the resolution is expected to be adopted next week. A draft of the resolution, which was obtained by The Cable, calls on states to "to respect and protect the right to privacy," asserting that the "same rights that people have offline must also be protected online, including the right to privacy." It also requests the U.N. high commissioner for human rights, Navi Pillay, present the U.N. General Assembly next year with a report on the protection and promotion of the right to privacy, a provision that will ensure the issue remains on the front burner.

Publicly, U.S. representatives say they're open to an affirmation of privacy rights. "The United States takes very seriously our international legal obligations, including those under the International Covenant on Civil and Political Rights," Kurtis Cooper, a spokesman for the U.S. mission to the United Nations, said in an email. "We have been actively and constructively negotiating to ensure that the resolution promotes human rights and is consistent with those obligations." But privately, American diplomats are pushing hard to kill a provision of the Brazilian and German draft which states that "extraterritorial surveillance" and mass interception of communications, personal information, and metadata may constitute a violation of human rights. The United States and its allies, according to diplomats, outside observers, and documents, contend that the Covenant on Civil and Political Rights does not apply to foreign espionage.

The tentative security deal reached between Secretary of State John Kerry and Afghan President Hamid Karzai could be at risk after Karzai told a gathering of elders that the signing should be put off until after next year's Afghan presidential election -- and signed only if it is approved by the council and the parliament. 

A delay in the signing would be problematic for the U.S. government, which wants an agreement as soon as possible to allow American planners to prepare for a military presence after 2014, when the majority of foreign combat forces will have left Afghanistan.  Despite the decision to defer signing the agreement until after the scheduled April 5 election, Karzai spoke in support of the deal on the first day of the meeting of the 2,500-member national consultative council of Afghan elders known as the Loya Jirga Thursday in Kabul.  At one point, Karzai acknowledged there was little trust between his government and Washington. He was quoted by Reuters as saying "My trust with America is not good. I don't trust them and they don't trust me. During the past 10 years I have fought with them and they have made propaganda against me.'' 

Karzai did not address one of the biggest points of contention in the proposed deal, the U.S. request for jurisdiction over its own troops. Lack of agreement over that issue helped scuttle a similar agreement with Iraq and prompted Washington to order most troops out of that country in 2011.  The Loya Jirga retains the right to revise or reject any clause of the deal. If the deal is approved by the council, whatever version of the pact that is extant must also be approved by the Afghan parliament. 

When the 193-member General Assembly adopts a resolution next month censuring the illegal electronic surveillance of governments and world leaders by the U.S. National Security Agency (NSA), the U.N.’s highest policy-making body will spare the United States from public condemnation despite its culpability in widespread wiretapping. A draft resolution currently in limited circulation – a copy of which was obtained by IPS – criticises “the conduct of extra-territorial surveillance” and the “interception of communications in foreign jurisdictions”. But it refuses to single out the NSA or the United States, which stands accused of spying on foreign governments, including political leaders in Germany, France, Brazil, Spain and Mexico, among some 30 others.

The draft says that while the gathering and protection of certain sensitive information may be justified on grounds of national security and criminal activity, member states must still ensure full compliance with international human rights. The resolution will also emphasise “that illegal surveillance of private communications and the indiscriminate interception of personal data of citizens constitutes a highly intrusive act that violates the rights to freedom of expression and privacy, and threatens the foundations of a democratic society.” Additionally, it will call for the establishment of independent oversight mechanisms capable of ensuring transparency and accountability of state surveillance of communications. And the resolution will request the U.N. High Commissioner for Human Rights, Navi PIllay, to present an interim report on the issue of human rights and “indiscriminate surveillance, including on extra-territorial surveillance.” This report is to be presented to the 69th session of the General Assembly next September, and a final report to its 70th session in 2015.

Chakravarthi Raghavan, a veteran Indian journalist who has been reporting on the U.N. and its activities since the 1960s, both in New York and later in Geneva, told IPS the resolution may help start a process under which the national security interests of every state, international security and right to privacy and human rights of people can be discussed and a balance found in some universal forum. “Otherwise, the U.N. world order will break down, and no one will benefit or emerge unscathed,” he said. Much will depend on the follow-up action that the General Assembly resolution calls for, and with what tenacity members pursue it. “Frankly, I am not at all clear that some of the nations raising the issue now are really serious,” said Raghavan, editor-emeritus of the Geneva-based South-North Development Monitor SUNS. “If they were, any one of them in Europe would have granted asylum to Edward Snowden, and not play footsie with U.S. in its attempts to have him jailed in the U.S. on espionage charges.” The revelations of U.S. spying have come mostly from documents released by Snowden, a former NSA contractor, who sought political asylum in Russia after he was accused of espionage by the United States.

In February, 1990, US Secretary of State James Baker (1989-1992), representing President George HW Bush, traveled to Moscow to meet with Russian President Mikhail Gorbachev regarding the possible reunification of Germany and the removal of 300,000 Soviet troops. There is little serious dispute that as the Berlin Wall teetered, Baker promised Gorbachev “there would be no extension of NATO’s jurisdiction for forces of NATO one inch to the east.” Gorbachev is reported to have taken the US at its word and responded “any extension of the zone of NATO is unacceptable.” “I agree,” replied Baker.” Unfortunately, Gorbachev never got it in writing and most historians, at the time, agreed that NATO expansion was “ill conceived, ill-timed, and above all ill-suited to the realities of the post-Cold War world.”

President Bush’s National Security Advisor Brent Scowcroft and Bill Clinton’s Defense Secretary were also in agreement. But by 1994, that verbal contract had not deterred the concerted efforts of a handful of State Department policy professionals to subdue the overwhelming bureaucratic opposition according to James Goldgeier in his classic “Not Whether but When: The US Decision to Enlarge NATO.” By 1997, the Gorbachev-Baker-Bush agreement was a forgotten policy trinket as Hungary, Poland and the Czech Republic were accepted into NATO. In 2004, former Soviet satellite countries Lithuania, Latvia and Estonia were admitted and in 2009, Croatia and Albania joined NATO. Currently, the former Soviet republics of Ukraine, Georgia, Moldova, Kazakhstan, Armenia, and Azerbaijan are pending membership and all five former Soviet republics in Central Asia (Kyrgyzstan, Tajikistan, Turkmenistan, Kazakhstan, and Uzbekistan) provide NATO with logistical support for the US war in Afghanistan. As the US-led NATO alliance tightens its grip on the Caucasus countries, the American public has not been informed about the Ukrainian Parliament’s approval for a series of NATO military exercises that would put US troops on Russia’s border, even though the Ukraine is not yet a member of NATO. Rapid Trident is a 12-nation military ‘interoperability’ exercise led by the US who will commit the majority of participating troops and Sea Breeze is a naval exercise that will take place on the Black Sea adjacent to Russian ports. The NATO buildup includes joint ground operations with Moldova and Romania.

Most recently, NATO Secretary General Anders Fogh Rasmussen announced that the military alliance has cut Russia off from civilian and military cooperation and that there would be the deployment and reinforcement of military assets including increased air patrols over the Baltic Sea and AWACS surveillance flights over Poland and Romania. It goes without saying that the NATO build up is in addition to the deployment of US troops and F-16 warplanes to Poland, F-15C warplanes to Lithuania and aircraft carriers to the Black and Mediterranean Seas. All this raises the question about whether a promise and handshake in the world of international diplomacy is a real commitment and what is a 1991 international promise made by a Republican Administration worth in 1994 to a Democratic Administration? Apparently zilch.