419 thoughts on “Human Rights Complaint on behalf of ALL *U.S. Persons Abroad* has now been submitted.”

1. @calgary,
   Thanks for the clarification about the confidentiality of the UN complaint contents at this point. Prof. Cockfield’s report on FATCA, produced for the Privacy Commissioner of Canada, and his submission to the Finance Committee re FATCA (co-authored by Prof. Christians) is public, and open access for download via SSRN http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=117948#reg.

   @Muzzled, and Embee, I don’t want to deflect this task onto the already burdened ADCS, but would a letter from an organization carry more weight than a letter out of the blue to Cannataci from individuals? I can’t quite remember whether ADCS also signed the UN complaint as an organization as well as other unaffiliated individuals who were willing to use their names?

2. badger and EmBee,

   I am merely the go-between whose name and contact information was used for the UN Human Rights Complaint submission since my name, etc. has been made public. I will ask MuzzledNoMore and others how to best use this opportunity that you have identified.

   http://isaacbrocksociety.ca/2014/07/28/human-rights-complaint-on-behalf-of-all-u-s-persons-abroad-has-now-been-submitted/comment-page-10/#comment-6273015

   “…….Joe Cannataci is UN’s first ever Special Rapporteur on Privacy

   Professor Joe Cannataci, Head of the Department of Information Policy & Governance in the Faculty of Media and Knowledge Sciences at the University of Malta, has been appointed Special Rapporteur on Privacy by the UN’s Human Rights Council during its meeting in Geneva on Friday 3 July, 2015. This is the first time that the UN has appointed a Special Rapporteur for Privacy…”……..

3. How far will they go, Badger?

   They won’t do the right thing until they’ve exhausted all other options. What those options look like are only limited by our imagination – and their level of desperation.

4. Thanks KV and Badger for your additional information for the supporting document that I’m putting together.

   Badger: About informing Mr. Cannataci: If Stephen is willing to write to him on behalf of ADCS that would possibly be the best approach. Stephen signed the Complaint on behalf of himself and the directors of ADCS so it would be appropriate. I think any contact needs to simply inform him that a complaint regarding the privacy of “US Persons” has been filed and is awaiting initial screening. Beyond that, we could get into infringement of our confidentiality agreement with the Human Rights Council which may guard its territory closely even within the UN organization itself. Just guessin’.

   Stephen may not be reading this thread. What is the concensus here? Shall I email him with this suggestion?

5. @MuzzeledNoMore,
   re; “..Stephen signed the Complaint on behalf of himself and the directors of ADCS so it would be appropriate…”

   It can’t hurt to ask if he and ADCS think it is appropriate and doable given all the other pressing work they are engaged in. If it goes nowhere, then at least the Special Rapporteur was notified of the existence of the complaint. And ADCS can decide whether sending the Cockfield report to the Privacy Commissioner of Canada as well (since it is already public open access content) is appropriate. Perhaps as the Special Rapporteur is an academic in the area of privacy issues, he would respectfully consider a journal article/report prepared by another academic, for a national privacy commissioner.

6. sorry, a clarification of this sentence abover; “And ADCS can decide whether sending the Cockfield report to the Privacy Commissioner of Canada as well (since it is already public open access content) is appropriate.”

   I meant sending Cannataci the Cockfield report – which was produced at the behest of, and funded BY the Privacy Commissioner of Canada (or at least the citation and SSRN link) makes sense to me.

7. Badger: I’ve just tried to find contact information for Prof. Cannataci on the UN Human Rights Council website but it appears we will have to contact him via the council’s central email address. It looks like all general communications have to go through the “central clearing house”. We would just have to rely on it getting forwarded to him correctly. I’m not confident that this would happen in any sort of timely fashion but it’s worth a go. Thank you for the excellent idea!

8. Here is something that describes the role of the UN Special Rapporteurs;

   “…independent experts appointed by the Human Rights Council who serve in a personal capacity and are mandated to report on human rights. They are not UN staff members and do not receive financial remuneration. The independent status of the mandate-holders is essential for the UN to impartially fulfill its functions.

   This particular special rapporteur position will be appointed in June. They will play a crucial role in developing common understandings and furthering a considered and substantive interpretation of the right to privacy in a variety of settings. They will be responsible for carrying out systematic analyses, research, and monitoring the right to privacy across the world. The special rapporteur will also play a role in providing much-needed guidance to states and companies on its interpretation of the right to privacy. They will amass input from all relevant stakeholders to ensure a coherent and complementary approach to the interaction between privacy and other fundamental freedoms is developed. They will report to the UNHRC and the United Nations High Commissioner for Human Rights on alleged privacy violations, wherever they may occur, including challenges arising from new technologies. They will draw attention to situations of particular concern and submit an annual report to the UNHRC and the General Assembly….”….

   From the UN:
   http://www.un.org/ga/search/view_doc.asp?symbol=A/HRC/28/L.27&referer=/english/&Lang=E
   ” United Nations A/HRC/28/L.27
   General Assembly Distr.: Limited
   24 March 2015

   Original: English
   Human Rights Council
   Twenty-eighth session
   Agenda item 3
   Promotion and protection of all human rights, civil,
   political, economic, social and cultural rights,
   including the right to development
   Angola,* Argentina, Austria,* Belgium,* Bosnia and Herzegovina,* Brazil, Bulgaria,* Croatia,* Cyprus,* Chile,* Denmark,* Djibouti,* El Salvador, Georgia,* Germany, Greece,* Haiti,* Honduras,* Hungary,* Iceland,* Indonesia, Ireland, Italy,* Liechtenstein,* Luxembourg,* Mexico, Montenegro, Netherlands, Nicaragua,* Norway,* Panama,* Paraguay, Peru,* Poland,* Portugal, Serbia,* Slovakia,* Slovenia,* Spain,* State of Palestine,* Switzerland,* Tajikistan,* Timor-Leste,* Uganda,* Uruguay,* Zambia:* draft resolution
   28/… The right to privacy in the digital age”

   https://www.eff.org/deeplinks/2015/03/un-human-rights-council-appoints-special-rapporteur-right-privacy

   I see some other potential ways to contact Prof. Cannataci;
   http://www.um.edu.mt/newsitems/uomprofappointedunspecialrapporteur
   https://mt.linkedin.com/in/joecannataci
   https://www.um.edu.mt/search/staff-search/emailform.php?u=staUyuO0k6SFnJ9Up5mWza290eSc2N9PxNS63cKYk5Rcc62gkti325%2Bk3H%3D%3D

9. Badger: Thank you for the incredibly important information in your last comment. The University of Malta website you provided had Prof. Cannataci’s email contact link. Thank you!!!

   It is good to know that the Special Rapporteur is not considered a part of the UN Staff. We would have been on a pretty goose-chase looking for him there!

   I’ll pass this information along to Stephen.

10. I don’t know whether it had anything to do with my phone calls or not, but I have received email from Pyongyang-on-the-Potomac indicating that my INA 349(a)(2) relinquishment of 2014 is denied, but my INA 349(a)(5) renunciation is approved, and the embassy in Vientiane will get in touch with me soon.

    Annoyed that the relinquishment (it satisfied every single requirement in the law, it probably failed to satisfy the made-up laws in the FAM though) of 2014 was rejected, but I took the renunciation oath in 2015 because I had heard of relinquishment cases like this being rejected.

    Overall, though, I feel like I have just been let of prison. I’m breathing the air, for the first time in a long, long time . . .

11. KV,

    Congratulations — likely it DID have something to do with your phone calls. Pity your claim to relinquishment was rejected but that your renunciation oath could be called upon to allow your fresh air of expatriation. Thanks for reporting.

12. Thanks!

    I have tried to make a contribution to the lawsuit, but it doesn’t like my credit card. I’ll try again. Even if my problem is solved, the whole rotten system remains in place.

13. KV: Congratulations from me as well. All of us together will help to end the “whole rotten system” once and *for all*!

14. Cross-posting here.

    I heard on CBC Calgary morning news, but this is the only place I found it on the internet:
    UN Human Rights Committee slams Canada for record on women / aboriginal women and numerous other matters, ranging from refugees to Bill C-51, the new anti-terror law

    The UN’s first report card on Canada in 10 years was released Thursday, and measues whether the country has met its human rights obligations.

    At least 26 human rights organizations, including the Canadian Civil Liberties Association, Amnesty International Canada and Human Rights Watch, submitted their own separate reports to the 18-member independent committee on the various issues.

    Overall, the report took exception to Canada’s failure to set up a way to implement some of the committee’s recommendations.

    “It should take all necessary measures to establish mechanisms and appropriate procedures to give full effect to the committee’s views so as to guarantee an effective remedy when there has been a violation of the covenant,” the report said.

    (says – More to come)

    **************

    UN Report On Canada’s Human Rights Record A ‘Wake-Up Call’

    The report, published Thursday, is the first substantive review of the country’s human rights record under Prime Minister Stephen Harper’s Conservative government.

    **************
    July 23, 2015: “Canada: Amnesty International urges all levels of government to implement Human Rights Committee recommendations”

15. “2.2 The Right to Privacy
    Privacy is a broad concept relating to the
    protection of individual autonomy and the
    relationship between an individual and society
    (including governments, companies, and
    other individuals). Privacy is considered essential
    in protecting an individual’s ability to
    develop ideas and personal relationships. Although
    it is often summarized as “the right
    to be left alone,” it encompasses a wide range
    of rights—including protection from intrusions
    into family and home life, control of
    sexual and reproductive rights, and communications
    secrecy.7 It is commonly recognized
    as a core right that underpins human
    dignity and such other values as freedom of
    association and freedom of speech.8
    The definitions of privacy and what is sensitive
    personal information vary among countries
    and individuals on the basis of past experiences
    and cultural understandings. Some
    cultures focus on community rights over individual
    rights; others, such as countries in
    Europe, are sensitive to privacy rights because
    of abuses going back to World War II. In matters
    relating to modern information and communications
    technologies, there is more agreement
    about the importance of privacy and the
    control of information (this will be covered in
    more detail later in this report).9
    The legal right to privacy is recognized in
    nearly every national constitution and in most
    international human rights treaties, including
    the Universal Declaration of Human Rights,10
    the International Covenant on Civil and Political
    Rights,11 the European Convention on
    Human Rights,12 the American Declaration
    of the Rights and Duties of Man,13 and the
    American Convention on Human Rights.14
    International bodies, including the European
    Court of Human Rights and the United Nations
    (UN) Human Rights Committee, also
    have ruled on the right to privacy.15
    In the information age, the right to privacy
    has evolved to address issues relating to
    the collection, use, and dissemination of personal
    data in information systems.”

    https://www.ip-rs.si/fileadmin/user_upload/Pdf/Publikacije_ostalih_pooblascencev/Right_to_Information_and_Privacy__banisar.pdf
    ‘The Right to Information
    and Privacy: Balancing Rights
    and Managing Conflicts’
    David Banisar,

    Report commissioned by the Access to Information (ATI) Program at the World
    Bank Institute (WBI) and supported financially by the CIDA-WBI Governance Program.

16. @ Calgary 411 Here’s an article from the Ottawa Citizen, also in the Calgary Herald today regarding the UN report. Spokeswoman for Canada Foreign Affairs Minister said : We are pround of our human rights record at home and abroad” but did not address specific issues.

    http://ottawacitizen.com/news/politics/un-rights-committee-worried-about-canadas-anti-terror-bill

17. Re complaint to the UN, and privacy issues:

    The Government of Canada is and was already aware that the US Patriot Act would abridge and override any existing Canadian privacy provisions:

    from 2004
    https://www.priv.gc.ca/media/nr-c/2004/nr-c_040818_e.asp

    This document appears to have been dated from 2010;
    ‘Guidance Document: Taking Privacy into Account Before Making Contracting Decisions’
    “1. Introduction

    Note: This guidance document was updated in July 2010 to include Chapter 6, entitled “Technological Measures to enhance Privacy and Security.” Chapter 6 identifies key technological measures that should be considered for inclusion in contract clauses to enhance privacy and security. The recommended measures are intended for use in contracts that involve personal information and other sensitive information that is handled electronically.

    In addition, all hyperlinks and references to legislation and policy instruments have been updated.
    Purpose of this document

    This guidance document is intended to provide advice to federal government institutions whenever they consider contracting out activities in which personal information about Canadians is handled or accessed by private sector agencies under contract.

    The document was developed in response to privacy risks associated with the potential exposure of Canadians’ personal information to U.S. authorities under the USA PATRIOT Act.
    Why this document was developed

    It is not uncommon for a federal government institution to contract out the management of a program or service involving personal information about Canadians to a company based in Canada, the U.S., or another country. When information is stored or accessible outside of Canada, however, it can be subject not only to Canadian laws but also to the laws of the other country.

    One such law is the USA PATRIOT Act. The Act permits U.S. law enforcement officials to seek a court order allowing them to access the personal records of any individual for the purpose of an anti-terrorism investigation without informing individuals or agencies that such disclosure has occurred. In theory, as a result of government contracting activities, U.S. officials could access information about Canadians through U.S. firms or their affiliates, even if the data is located in Canada.

    Although the risk of U.S. authorities using the USA PATRIOT Act in this way is minimal, it nevertheless exists. This has highlighted the need for special considerations with respect to government contracts involving personal information in order to mitigate such privacy risks.

    The significance of the USA PATRIOT Act has been summarized by the Privacy Commissioner of Canada, Jennifer Stoddart:

    The concerns raised about the impact of the USA PATRIOT Act on the privacy of personal information about Canadians are really part of a much broader issue—the extent to which Canada and other countries share personal information about their citizens with each other, and the extent to which information that has been transferred abroad for commercial purposes may be accessible to foreign governments. The enactment of the USA PATRIOT Act may simply have served as the catalyst that brought these issues to the fore.

    The Government of Canada takes the issue of privacy very seriously. It supports the assessment of the Privacy Commissioner of Canada that the USA PATRIOT Act highlights the broader issue of personal information about Canadians becoming accessible to any foreign government.”
    http://www.tbs-sct.gc.ca/atip-aiprp/tpa-pcp/tpa-pcp-eng.rtf
    http://www.tbs-sct.gc.ca/atip-aiprp/tpa-pcp/tpa-pcp01-eng.asp#Toc267034254

    The Patriot Act would override any limitations on how the information collected under the FATCA IGA can be used and shared, contrary to the bs on the CRA site:

    ” 3. Does my financial data remain confidential?

    Yes, it does. The information is exchanged in accordance with the provisions of the Canada-U.S. tax treaty. The treaty contains robust safeguards to make sure that the IRS treats as confidential the taxpayer information that it receives and that it uses the information solely to administer tax laws.

    4. What does each government do with the information it receives?

    The CRA and the IRS use the information they receive primarily to assess risk and to make sure that taxpayers properly report their income from accounts they hold in the other country.

    The Canada-U.S. tax treaty limits the use of information received through exchanges such that it can only be used to administer tax laws. For example, the IRS cannot share the information it receives under this agreement with non-tax authorities. Also, the IRS cannot use the information to administer non-tax laws such as the U.S. Bank Secrecy Act.”

    The BC Privacy Commissioner produced this report back in 2004;
    Oct 29, 2004 ‘Privacy and the USA Patriot Act: Implications for British Columbia Public Sector Outsourcing’. It expresses many of the same concerns that we have raised, including the lack of protection once Canadian data crosses into the US, Charter and Constitutional protections, sovereignty issues, etc.

    For ex.

    .”……..Due in part to its cultural and constitutional history, the US has followed a different route from
    Canada and Europe in the privacy field. No independent body was established to enforce the US federal Privacy Act and few US states have enacted laws regulating government use of personal information. Regarding commercial activities, the US has opted for sector specific laws with an emphasis on self-regulation or enforcement by private litigation, rather than through independent oversight. There is ongoing tension between the US and Europe regarding the adequacy of US privacy laws. Canada’s privacy laws are much more in tune with Europe’s.

    Much of the discomfort voiced about the implications of the USA Patriot Act for Canadians can
    be attributed to the disparity between the American and Canadian approaches to privacy. As a result of
    this disparity, Canadian personal information flowing across the border into the US does not always enjoy
    the same standards for protection that we have come to expect here….”…..

    ..”.the US Government Accountability Office has studied the extent of data mining by US federal agencies. It
    confirmed that this practice is increasingly common and that many of the data mining efforts involve the
    use of personal information…”………..

    2. Once personal information crosses borders,
    regulating its use is at its best difficult and at its
    worst impossible;.”….

    …”.Canada and the US do not
    necessarily have a common level of privacy protection
    that each affords its citizens by law. While the US may
    be the bastion of individual liberties, it has in many
    ways been a more reluctant guardian of individual
    privacy rights. As we explained in Chapter 3, Canada
    has followed the lead of the European Union in
    enshrining the principles of the Universal Declaration
    of Human Rights in federal and provincial privacy
    laws, whereas the US has taken a relatively hands off
    approach, except in the regulation of commercial
    privacy. Similarly, US courts have taken a narrower
    approach to privacy rights under the US Constitution,
    which is not identical to Canada’s Charter of Rights
    and Freedoms..”……

    See also particularly;
    PRIVACY UNDER THE
    CANADIAN CHARTER OF
    RIGHTS AND FREEDOMS
    Chapter 8, starting at page 87,
    from
    https://www.oipc.bc.ca/special-reports/1271

    Re the EU:
    In the EU there is general data protection legislation (under current revision ) underpinned by the fundamental Right to Privacy as enshrined in the Charter of Fundamental Rights, as well as the constitutions of several of the member countries. Personal information can be processed only if it complies with the law, or the owner of the information (the “data subject”) agrees. In the US there is no such statutory recognition of privacy as a fundamental right, and personal information maybe processed freely, unless it concerns children under 13, or health or financial services, which are all subject to specific sectoral legislation.

    Threat to privacy protections

    With such fundamental value differences, any negotiation on convergence or mutual recognition for privacy protections would seem utopian; as a topical example, the European Justice Commissioner Viviane Reding has been negotiating an Umbrella Agreement with the US Attorney General, Eric Holder, for the exchange of data in the law enforcement sector for over two years, with no resolution after 15 negotiating rounds .,,,”
    https://www.privacyinternational.org/?q=node/246

18. Heartsick,

    Thanks for the additional link on this subject. The government response, to me, sounds as if that they are threatened by the UN Human Rights Committee Report as by comparison Canada is so much better than other countries.

    This was a great and the correct response from Alex Neve, Secretary General, Amnesty International Canada:

    But comparison isn’t the issue, said Neve. “This isn’t about whether Canada has the best or worst reputation in the world,” he said. “It is about whether we still have work to do to ensure that human rights are fully upheld and respected in the country, and the UN is telling us that we do.”

19. Am archiving these links here because they refer to events/documents/issues that may assist in the complaint to the UN:

    Re latest challenge to FATCA as forced on the EU, from EU MEP Sophie in’t Veld;
    http://isaacbrocksociety.ca/fatca-and-the-eu/comment-page-1/#comment-6458904

    and question about how these initiatives http://www.globalpolicywatch.com/2015/09/eu-us-umbrella-agreement-about-to-be-concluded-towards-a-transatlantic-approach-to-data-protection/ may interact with the collection, transmission, storage, and usage of data collected in the EU from EU residents and citizens;
    http://isaacbrocksociety.ca/fatca-and-the-eu/comment-page-1/#comment-6538199

20. @All In Australia we had a bit of a go with The Australian Human Rights Commission.

    I put this letter together here: See assistance request #4 at the end: Refer the matter to the Australian Human Rights Commission http://isaacbrocksociety.ca/fatca-and-australia/comment-page-20/#comment-6726208

    @JakDac sent that to the Commission. This is the response received. Their first line of filtering suggests back to us that the human rights abuse outlined does not fit one of their pre identified categories. Any thoughts for a next go? Do we go back to them and say that discrimination/abuse based on nationality is a form of race discrimination? [Or maybe we should try the anti discrimination body in Australia?] Any suggested wording?

    RESPONSE:
    I refer to your recent contact with the Commission regarding the United State of America – Australian Tax Treaty.

    The Australian Human Rights Commission has the power to investigate and conciliate complaints about:

    • discrimination because of a person’s race, sex, gender identity, sexual orientation, intersex status, pregnancy, marital or relationship status, age or disability as well as sexual harassment in specific areas of public life, such as, employment, education and the provision of goods and services;

    • racial hatred that takes place in public;

    • discrimination in employment because of a person’s criminal record, trade union activity, religion, political opinion or social origin; or

    • breaches of human rights by the Commonwealth of Australia.

    From the information you have provided it is unclear whether the Commission’s Investigation and Conciliation Section can help you with this matter.

    If you have not done so, you may wish to contact your local Federal Member of Parliament.

    Should you have any further queries, please advise by return email or call the National Information Service on 1300 656 419.

    Kind regards

    Bethany Hender
    National Information Service
    Australian Human Rights Commission

    Level 3, 175 Pitt St, Sydney NSW 2000
    GPO Box 5218, Sydney NSW 2001
    T 1300 656 419 F +61 2 9284 9611
    E infoservice@humanrights.gov.au W http://www.humanrights.gov.au

21. @JC, does Australia have a Constitution or Charter of Rights similar to Canada’s that prohibits discrimination based on ethnic or national origin (as distinct from race)?

    I just quickly saw this below, which in the context of federally prohibited grounds for discrimination (for ex. in context of employment) in Australia appears to include national or ethnic origin:
    …..”(b) Prohibited grounds

    The grounds upon which discrimination is made unlawful under the federal regime[7] are:

    race, colour, descent[8] or national or ethnic origin;[9]
    sex, martial status, pregnancy or potential pregnancy;
    family responsibilities;[10]
    disability;[11] and
    age.”
    from
    https://www.humanrights.gov.au/publications/right-discrimination-free-workplace#2

    But perhaps national or ethnic origin is not prohibited grounds in every territory or in every instance?
    When I did a ‘Find’ search and highlight for nationality or national origin here;
    https://www.humanrights.gov.au/employers/good-practice-good-business-factsheets/quick-guide-australian-discrimination-laws

    I found these terms listed in several places; ‘nationality’, ‘national origin’, ‘national extraction’, ethnicity….

    Does the AU Human Rights Commission mean that national origin or nationality or ‘national extraction’ discrimination is not prohibited in the area of banking or financial services?

22. Also useful re AU?
    https://www.humanrights.gov.au/our-work/rights-and-freedoms/rights-and-freedoms-web-links

23. The AU Human Rights site cited this as a useful link, and lo and behold, it belongs to a Canadian professor at York U in Toronto:
    http://www.bayefsky.com/about.php
    Though funded by US foundations.

24. http://www.bayefsky.com/bytheme.php/id/1176
    The United Nations Human Rights Treaties
    BY THEME OR SUBJECT MATTER
    How to Complain About
    Human Rights Treaty Violations

    Working Methods of the Treaty Bodies

    Reform of the UN Human Rights
    Treaty System
    By Theme or Subject Matter
    Nationality

    Concluding Observations
    Articles
    Jurisprudence
    General Comments and Recommendations

    See also:

    ALIENS
    CHILDREN’S RIGHTS -> NAME, IDENTITY AND NATIONALITY
    EQUALITY AND DISCRIMINATION -> RACIAL DISCRIMINATION

25. Read the Australian Explanatory memorandum, chapter 2 Statement of Compatibility with Human
    Rights on page 21 to see the Human Rights scrutiny process undertaken and conclusions reached.