Page 154 - Privacy in a Cyber Age Policy and Practice

142 PRIVACY IN A CYBER AGE

requirements, the judge issues “an order directing the government to, at
the government’s election and to the extent required by the Court’s order,
either correct any deficiency identified by the court’s order not later than
30 days after the date on which the Court issues the order, or cease, or not
begin, the implementation of the authorization for which the certification
was submitted.” 147
Ergo, PRISM meets not only the constitutional requirements as they are
widely understood, but is also in accordance with the relevant laws con-
cerning FISA and related matters.

c. International Law
Article 12 of the Universal Declaration of Human Rights, to which the
United States is a signatory, affirms that “no one shall be subjected to arbi-
trary interference with his privacy, family, home or correspondence, nor
to attacks upon his honor and reputation. Everyone has the right to the
148
protection of the law against such interference or attacks.” The Inter-
national Covenant on Civil and Political Rights (ICCPR), which was rati-
fied by the United States in March 1976, reaffirms this principle in nearly
identical terms. International law has recognized the right to privacy as
a fundamental human right. The Universal Declaration of Human Rights
(UDHR), which Professor Richard Lillich describes as the “Magna Carta
of contemporary international human rights law,” 149 is widely accepted as
customary international law.
One must nevertheless take into account that the UDHR is not legally
binding, and signatories are consequently not legally responsible for
violations of the declaration’s provisions. Furthermore, although the U.S.
Congress ratified the ICCPR, it did so with an “unprecedented number
of reservations, understandings, and declarations”—effectively “rendering
the treaty powerless under domestic law.” 150
Most important, because spying has been practiced since the begin-
ning of history and is very frequently and regularly practiced by one nation
against others, disregarding the privacy rights of foreign nationals is widely
tacitly accepted as part of “normal,” albeit not normative, international
life. 151 It is considered uncouth to submit friendly nations to surveillance,
but it is not considered a serious violation of the prevailing standards of
international relations. PRISM fits into a world that is rife with many more
serious violations of the UDHR.

d. Executive Order
Some hold that the focus of public debate on Section 215 of the Patriot
Act is misguided given the greater surveillance powers “authorized
152
under Executive Order 12333” under the Reagan administration. This