Paris, 10 December 1948: in the premises of the Palais de Chaillot, the United Nations General Assembly adopts the Universal Declaration of human rights. A text that, 65 years later, suffers from a frontal assault from the United States through the NSA spying website flexispyreview.org.
There are events in the international story about espionage, just quote the Stasi or the CIA experiments. However, the case of the NSA spying is perhaps somewhat different, as used in an arbitrary manner and invasive technological advances that we take us all today.
Today in ALT1040, before the latest information on the tracking of 60 million calls in Spain in a single month by United States, we want to address the legal keys of the NSA spying. To this end, we recently talked to Sergio Carrasco, lawyer and telecommunications expert.
Privacy is a human right
In the Universal Declaration of human rights which we mentioned above, is collected explicitly, through article 12, that the right to privacy is a human right:
No one will be object of arbitrary interference with his privacy, family, home or correspondence, or attacks on their honour or reputation. Everyone has the right to the protection of the law against such interference or attacks.
For this reason, the activities of the national security agency of United States attack directly against this right, while the administration of Barack Obama do not get tired of repeating that the NSA spying ampara in the rules of the Patriot Act, which aimed to prevent possible terrorist attacks.
United States has skipped several international agreements
However, metadata espionage tasks not only track possible terrorist suspects, but that activity has gone beyond, doing indiscriminate work on politicians like Angela Merkel or Felipe Calderón.
As explains Sergio Carrasco, the frontal attack to privacy also means “in some cases the breach of treaties as they are the research to prevent the financing of terrorist groups, given that there is a mechanism to do so”.
And it is that agreements such as the Convention for the Suppression of the financing of terrorism and the resolution 1373 of United Nations already include collaborations between countries to ensure international security.
There is even a European regulation on the privacy
It is therefore striking that espionage of the NSA, clearly arbitrary and indiscriminatorio, not caused at the moment a firmer affected countries response. While it is true that there have been convictions public at European level of the performance of United States, the truth is that legally it is unlikely that the EU can give more steps in that regard.
Carrasco explains that “as we have no regulation at European level, mainly us welcome to the particular rules of each State, notwithstanding some precepts that may exist in the treaties”. In the case of Spain, the crime against the privacy would be typified by the 197.1 article of the Criminal code:
Who, to discover secrets or violate the privacy of another, without his consent, you taking possession of his papers, letters, emails or any other documents or personal effects or intercept their telecommunications or use artifice technical listening, transmission, recording or reproduction of sound or image, or any other communication signal, shall be punished with the penalties of imprisonment from one to four years and a fine of twelve to twenty-four months.
Due to the weight of the United States, Carrasco recognizes that international measures that could be taken would be more of a political nature, such as the “end of certain agreements of exchange of information, and the statement made by the European Parliament that will handle most new treaties were signed”.
At Spanish level, on the other hand, perhaps is should consider the update of the law 25/2007, which speaks of the conservation of data related to electronic communications and public communications networks. In this case, hardening law would somehow limit the collection of data on investigation of crimes.
As a political measure, on the other hand, the Spanish Government has acknowledged that the NSA spying is “improper and unacceptable practice”, after a meeting held between the Secretary of State for the EU, Iñigo Méndez de Vigo, and the Ambassador of the United States, James costs.
Can we report that we have spied?
The answer to this question is not simple, since as we have seen in the case of the NSA spying, “limits to these activities put them more than the right techniques”, according to Carrasco. And from a legal perspective, as we have seen, United States tries to avail themselves of its legislation, but Sergio Carrasco doubt that “is justified to allow unlimited access outside its territory”.
You could report individually, but we should demonstrate the violation of privacyWhat can we do individually to the NSA spying? Apart from the known encrypted communications, from the legal sphere, individuals could be denounced the practices of United States.
But as explains Carrasco, while there could be individual complaints, “the problem would be really prove that such violation has occurred”. In addition, continues the lawyer, “to count with effectiveness, get a favorable ruling, would have to go to the courts and tribunals of the United States”, a situation similar to the occurred with case Megaupload.
In the case of companies which had cooperated “voluntarily”, would be possible, says Carrasco, “to determine if it could act legally against its activity”, contrary to what you mentioned regarding political decisions against the United States.
The legality of the spying is not yet clear in international law
As we see, from the legal point of view, the situation is more convoluted than it seems. And it is that from the perspective of international law, espionage is still an issue that arouses discussions on.
To give just two examples, the Rome Statute of the International Criminal Court recognizes the espionage as a lawful activity. But on the other hand, the United Nations resolution 2625 determines that no State may interfere in the “internal affairs” of another.
If this second text we add duty to ensure the right to privacy which we cited earlier, a legal point which should be resolved urgently is without doubt. Perhaps the only positive side of this case is that, once and for all, be agreed minimum principles on respect for legality and individual rights in issues related to espionage.