The 'Snowden Treaty' Is A Non-Starter

1013_EdwardSnowden Treaty
Demonstrators hold up their signs during the "Stop Watching Us: A Rally Against Mass Surveillance" march near the U.S. Capitol in Washington, October 26, 2013. This September, Snowden and his supporters announced they are working on a new treaty to address problems his disclosures and experiences as a whistleblower exposed. Jonathan Ernst/Reuters

This article first appeared on the Council on Foreign Relations site.

When I first saw "The Snowden Treaty" in a Tweet, I thought it was from The Onion. Wrong, and inexcusable for a guy who published The Snowden Reader.

In September, Snowden and his supporters announced they are working on a new treaty to address problems his disclosures and experiences as a whistleblower exposed. Far from satire, the proposal is serious, and the proposers earnest.

However, taking this effort seriously proves disappointing, because what is proposed seems insufficiently radical for the problems advocates of a Snowden treaty identify.

The proposal's formal title is "International Treaty on the Right to Privacy, Protection against Mass Surveillance, and Protection of Whistleblowers." The idea came from David Miranda, the partner of Glenn Greenwald, the journalist who helped Snowden.

Previously, the UN Special Rapporteur for the Right to Privacy, Joseph Cannataci, identified a potential need for a "Geneva Convention-style" agreement in the wake of Snowden's revelations. Miranda is working with privacy advocates and lawyers to produce a treaty text Miranda promises will be "a bulletproof document." The text has not been released yet, but it has been shared with Snowden, "a handful of sympathetic governments," and Pope Francis.

According to a summary, the treaty will reaffirm privacy as a fundamental right, outlaw mass surveillance and protect whistleblowers. To achieve these goals, the treaty will contain obligations (e.g., no mass surveillance) and mechanisms (e.g., oversight) to monitor and improve compliance. Advocates claim the treaty responds to "real demand" from "the global public," but they acknowledge adoption will be hard, with many people dismissing it as wildly idealistic.

Yes, it is unlikely a U.S. president would negotiate and the Senate consent to a Snowden Treaty. But glib punditry won't faze the effort.

More telling are problems with the proposal on its own terms. Snowden argued that the mass surveillance he disclosed violated international law on privacy in the Universal Declaration of Human Rights and human rights treaties. Similar assertions appear concerning the Snowden treaty.

So, if existing treaties and other international documents already recognize privacy is a fundamental right and outlaw mass surveillance, why the need for a new treaty that does the same thing?

The existing treaties don't work? So, the answer is to choose the same strategy, a treaty, to protect the same right? How would a Snowden treaty fare any better? Why would states, which—according to Snowden's supporters—don't abide by existing treaties, now decide to respect one that enshrines privacy as a fundamental right and outlaws mass surveillance? How will the same legal strategy to protect the same right yield different results with the same states?

These questions can't be dismissed by claiming the Snowden treaty will be different because, based on what is available, nothing different is proposed. The goal is a treaty negotiated, agreed, ratified, and implemented by states, just like existing treaties. The proposed treaty will re-affirm privacy as a fundamental right, so it is doing nothing new with this right, even in terms of mass surveillance in the digital age.

These questions might have answers if the Snowden treaty innovates with the right to privacy rather than simply reaffirming existing international law. Changing the right would mean existing treaties are not sufficient and a new agreement would have a clear rationale.

The proposal states the treaty will contain stronger whistleblower protections than international law presently recognizes—a change treaty law could, in theory, advance. But, tweaking the right to privacy to address what Snowden disclosed would suggest his disclosures did not, as claimed, reveal clear violations of international law.

Perhaps innovations will appear in compliance and implementation mechanisms. The proposal promises the treaty will require states to establish independent supervision of surveillance activities and periodically review these activities. Any country can, right now, adopt such measures without a Snowden treaty. But, according to Snowden, "around the world governments are aggressively pressing for more power, more authority, more surveillance rather than less."

How do we get innovative, robust compliance and implementation procedures from governments not interested in them? This predictable problem explains why oversight mechanisms in human rights treaties are notoriously weak. Put another way, states can riddle bulletproof documents with holes because they, not privacy advocates, write treaty rules. Oddly, the Snowden-treaty movement wants us to traipse, once again, into this cul-de-sac.

Most surprisingly, the Snowden treaty seems very un-Snowden. For many, the power of Snowden's rallying cry for privacy in the digital age comes from his challenge to established rules and processes and the impact this defiance has had. This example calls for more than believing states will, this time, adopt an effective treaty.

So, for @Snowden: Why a treaty? Why not something more radical, like a Snowden Charter—an accord among civil society, consumers and technology companies to confront governments and confound mass surveillance through, among other things, continuing to expand encryption in our digital lives?

David Fidler is Visiting Fellow for Cybersecurity at the Council on Foreign Relations.