Freedom of Expression

Press Release R 50/15



R 50/15




Washington, D.C., May 14, 2015. — The Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (IACHR) calls on the United States to introduce strong reforms to the National Security Agency’s (NSA) telephone metadata collection program to ensure it complies with the State’s obligations under international human rights law.


The existence of the NSA’s telephone metadata collection program was revealed on June 5, 2013 by The Guardian, through documents disclosed to the newspaper by whistleblower Edward Snowden. Under the program in effect since 2006, the Foreign Intelligence Surveillance Court (FISC) has ordered telecommunications companies to turn over to the NSA an electronic copy of all call records or metadata on the telephone communications of their subscribers made within the United States and between the U.S. and foreign countries, on a "daily basis" for a three-month period. The information is collected for the purpose of enabling future queries and data-mining for foreign intelligence purposes. The FISC has periodically reauthorized the program since May 2006.


While the program does not include the content of the communications, the Office of the Special Rapporteur has acknowledged that given the dynamic character of communications technology, the collection of large amounts of data about persons, including their locations, online activities and with whom they communicate, may constitute a particularly invasive act that seriously affects the right to privacy and freedom of expression. The Office of the Special Rapporteur has expressed concern as legislation on the collection of intelligence and national security information has remained inadequate to advancement in technologies, allowing for an indiscriminate and unprecedented access to information related to the communications between individuals that can have a chilling effect on free expression and the search for and distribution of information.


In that regard, the Office of the Special Rapporteur takes particular note of the important decision adopted on May 7 by the United States Court of Appeals for the Second Circuit ruling that the telephone metadata collection program, revealed two years ago, "exceeds the scope of what Congress has authorized and therefore violates [section] 215" of the Patriot Act. The Court of Appeals concluded that section 215 "cannot be interpreted in a way that defies any meaningful limit." This Office also observes the discussions surrounding a bill [USA Freedom Act of 2015] currently pending in the United States Congress, aimed at modifying the telephone metadata program, before provisions of the Patriot Act expire on June 1. The bill has the support of the Obama Administration, that announced on January 2014 changes in the implementation of the Section 215 bulk metadata program, in response to a review process. On May 13, the House of Representatives voted 338-88 in favor of the USA Freedom Act and it would now be discussed at the Senate.


In June 2013, the UN and IACHR Special Rapporteurs for Freedom of Expression released a Joint Declaration on Surveillance Programs and their Impact on Freedom of Expression. This Joint Declaration states that "given the importance of the exercise of these rights for a democratic system, the law must authorize access to communications and personal information only under the most exceptional circumstances defined by legislation. When national security is invoked as a reason for the surveillance of correspondence and personal information, the law must clearly specify the criteria to be used for determining the cases in which such surveillance is legitimate. Its application shall be authorized only in the event of a clear risk to protected interests and when the damage that may result would be greater than society’s general interest in maintaining the right to privacy and the free circulation of ideas and information. The collection of this information shall be monitored by an independent oversight body and governed by sufficient due process guarantees and judicial oversight, within the limitations permissible in a democratic society."


More recently, on May 2015, the UN, OSCE, IACHR and ACHPR Special Rapporteurs on Freedom of Expression issued a Joint Declaration on Freedom of Expression and Responses to Conflict Situations in which they reaffirm that "[i]n accordance with the three-part test for restrictions on freedom of expression and, in particular, the necessity part of that test, surveillance should be conducted only on a limited and targeted basis and in a manner which represents an appropriate balance between law enforcement and security needs, on the one hand, and the rights to freedom of expression and privacy, on the other. Untargeted or ‘mass’ surveillance is inherently disproportionate and is a violation of the rights to privacy and freedom of expression."


The IACHR Special Rapporteur calls on the United States to take this opportunity to establish reforms to ensure that the surveillance of communications is clearly authorized by law and that the law establishes robust limits that narrow the nature, scope and duration of these types of measures, and the grounds for ordering them. The law should increase the transparency of the FISC’s decisions, and clarify the legal mechanisms by which these programs may be challenged, including the creation of a Public Interest Advocate to represent privacy and civil liberties interests before the FISC; as recommended by the President’s Review Group on Intelligence and Communications Technologies in 2013.


The Office of the Special Rapporteur for Freedom of Expression was created by the IACHR to encourage the defense of the right to freedom of thought and expression in the hemisphere, given the fundamental role this right plays in consolidating and developing the democratic system.