Is the Draft UN Resolution on the Right to Privacy a Trojan Horse for Libertarians?

In response to recent revelations of NSA foreign surveillance programs, thUN General Assembly appears poised to adopt a Resolution on the international right to privacy. Because the draft calls on states to rein in their abusive surveillance tactics, it has been hailed as a potential victory for libertarians. But is it?

While the aim of the Resolution is to enhance individual privacy — a decidedly libertarian end – the Resolution also calls for government regulation of corporate activity — a decidedly anti-libertarian means.  

The operative text of the draft Resolution includes the following provisions (my emphasis added):

The General Assembly …

1. Reaffirms the rights contained in the International Covenant on Civil and Political Rights, in particular the right to privacy and not to be subjected to arbitrary or unlawful interference with privacy, family, home or correspondence, and the right to enjoy protection of the law against such interference or attacks, in accordance with article 12 of the Universal Declaration of Human Rights and article 17 of the International Covenant on Civil and Political Rights;

4. Calls  upon all States:
(a) To respect and protect the rights referred to in paragraph 1 above, including in the context of digital communication;

The exact meaning of the above text may escape people who are relatively new to using the UN as a platform for political action. Experts in international human rights law and UN practice, however, know that the terminology “to respect and protect” is critical. Calling on states to respect privacy rights essentially refers to negative rights – freedom from interference by the state. Calling on states to “to protect” privacy rights, however, refers to positive rights – a duty of the state to safeguard individuals from abuse by third parties, including other private actors. 

As an illustration, consider the following explanation of these concepts by the UN human rights body that overseas the economic and social rights convention:

The right to adequate food, like any other human right, imposes three types or levels of obligations on States parties: the obligations to respect, to protect and to fulfil. In turn, the obligation to fulfil incorporates both an obligation to facilitate and an obligation to provide.  The obligation to respect existing access to adequate food requires States parties not to take any measures that result in preventing such access. The obligation to protect requires measures by the State to ensure that enterprises or individuals do not deprive individuals of their access to adequate food.

The implications for the draft Resolution on the right to privacy are plain. In an earlier post analyzing the draft text, Just Security’s Philip Alston wrote:

[B]y calling upon states both to respect and protect, the resolution uses the technical terms that signify both an obligation on the state to desist from violating the relevant rights as well as an obligation to ensure that it provides protection against violations by other actors.  Thus, in this case, private actors such as Google, Yahoo, Microsoft and others, are covered.  It means that the US must … regulate these private actors so as to ensure that they do not violate privacy rights ….

In one sense, the commitments in the draft Resolution are nothing new. Global human rights bodies, including UN organs, have long espoused a duty of states to regulate internet service providers to protect individual “rights” such as freedom from racial discrimination (para 147) and freedom of opinion and expression (paras 76 & 95) and, yes, privacy (para. 10). The draft General Assembly Resolution, however, will become a significant milestone, especially if it passes by consensus vote.

What are the implications? At the very least many libertarians will have less to celebrate than their progressive allies. That’s because, as Alston suggests, the Resolution will empower stakeholders who favor state regulation of Google, Microsoft and the like. In particular, the draft Resolution charges the office of the UN High Commissioner for human rights to prepare reports and recommendations for further action “on the protection of the right to privacy,” and this agenda-setting function has the potential to address abuses by internet service providers and other private actors.

Finally, the long-term effect of the Resolution may showcase some of the obstacles to forging novel political coalitions in the United States. As one of his first posts on Just Security, Steve Vladeck wrote about a potential “political realignment” in American politics involving “the liberal wing of the Democratic party and the libertarian wing of the Republican party coming together” due to their shared concerns about privacy and surveillance. The UN Resolution suggests that that this potential political coalition still faces considerable internal cleavages. So on the night of the UN Resolution’s passage, we will see libertarians and progressives celebrating together. Just don’t be surprised when they end up leaving in separate vehicles.

  

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.