EDRi letter to the US Embassy on PRISM

By EDRi · June 19, 2013

This article is also available in:
Deutsch: [PRISM: EDRi-Schreiben an US-Botschafter |]

On 18 June 2013, EDRi delivered the following letter in a frank exchange
of views with the US Embassy on PRISM & data protection:

European Digital Rights would like to thank you for the invitation to
meet with you today. We welcome the opportunity to have a discussion
with you on current issues of great importance to citizens on both sides
of the Atlantic.

However, we would also like to express our profound disappointment with
regard to recent revelations about the PRISM programme and the
underlying legal framework (FISAAA in particular), which provides the
domestic legal basis for this activity. We expect and demand better from
the United States of America.

We would also like to express our disappointment at the behaviour of the
United States during the discussions surrounding the proposed European
Regulation and Directive on data protection.

Regarding PRISM, widespread untargeted surveillance leads to
self-censorship, the discouragement of dissent, the restriction of
freedom of assembly and the restriction of freedom of communication. In
such an environment, democratic discourse and participation are the
ultimate casualties. Untargeted surveillance imposed in societies which
have had no democratic choice in the matter, which have neither been
consulted nor informed of this infringement of their basic rights is a
double affront to democracy. The fact that the foreign power (regardless
of who that foreign power is) that imposed these restrictions believes
that its domestic procedures are adequate to minimise the risks of this
surveillance is wholly irrelevant. When the President of that foreign
power then seeks to reassure his own citizens that the surveillance only
covers foreigners (who do not even have the same rights before US courts
as US citizens), this heaps insult onto injury. We expect better.

Regarding the European legislative proposals on data protection, while
we recognise the right of the United States to give its views on
relevant legislation in the European Union, we expect and demand an
appropriate degree of respect for our democratic processes. The US
intervention in the drafting process of the Regulation, even before the
text was formally available to citizens in Europe, was wholly
inappropriate. The resulting successful deletion of provisions to
protect the fundamental rights of European citizens against access by
foreign governments went far beyond the bounds of what is acceptable in
a democratic society. The use of an “informal note”(1), distributed to the
Commission without traceability to the US government, fell far below the
minimum standards one should be able to expect from the United States.
We were also shocked by your speech at the Forum Europe Conference where
you referred to “the regulation’s requirement for explicit consent in
all circumstances”, which is simply false. We expect and demand better
from the United States than misrepresentations of this nature.

It was possibly even more surprising to see a second “informal note”(2)
being circulated by the US authorities in January of this year. We were
also disappointed by the frantic, alarmist and essentially groundless
nature of that document. We stress that the United States has the right
to make its views known in this process – but it has to stand behind its
statements. Both in terms of process and content, the circulation of the
informal paper fell, yet again, beneath the standards that we should be
able to expect from the United States. The contradiction between the
paper’s call for respect for the International Covenant on Civil and
Political Rights (ICCPR) on the one hand, and the unequivocal breach of
Articles 17 and 19 of that instrument by the PRISM programme is quite
simply astonishing.

In summary, we demand:

– that the USA desist from any and all foreign data collection measures
that are not part of appropriate mutual legal assistance agreements that
have treaty status;

– that any foreign data collection measure include provisions giving all
affected individuals, at the very least, equal rights to US citizens at
all stages of an investigation and, to avoid “jurisdiction-shopping”,
rights that are not significantly lower than any democratically approved
safeguards in their country of residence;

– that the USA desist from any and all data collection measures which
are not targeted and not based on concrete suspicions;

– that the USA desist in future from lobbying on proposals that have not
been released by the European Commission;

– that the USA only communicate future position papers to the European
Union that are clearly identifiable as documents emanating from the US

We say all of this not because we do not respect the United States, but
because we do. We expect better because we know that we can expect better.

(1) First informal note; December 2011

(2) Second informal note, January 2013

The EDRi letter in a PDF format (18.06.2013)

(Contribution by Joe McNamee – EDRi)