Explanation of Position on a Third Committee Resolution on the Right to Privacy

Thomas Weatherall
U.S. Mission to the United Nations
New York City
November 20, 2018


The United States appreciates the efforts of Germany and Brazil on this resolution, and we join consensus today because it reaffirms privacy rights, as well as their importance for the exercise of the right to freedom of expression and holding opinions without interference, and the right of peaceful assembly and freedom of association. These rights, as set forth in the International Covenant on Civil and Political Rights and protected under the U.S. Constitution and U.S. laws, are pillars of democracy in the United States and globally.

We are pleased the resolution recognizes that the same rights that people have offline must also be protected online, including privacy rights. While the resolution expresses concern that the automatic processing of personal data in the commercial context for profiling may lead to discrimination or other negative effects on the enjoyment of human rights, it is also worth noting that data flows and data analytics can create great benefits for economies and societies when combined with appropriate data protection and privacy safeguards, including safeguards against discriminatory effects.

We believe that the portion of the resolution addressing business enterprises is too prescriptive. Further, while the resolution expresses concern about obtaining free, explicit, and informed consent to the commercial re-use of personal data, we also note that in many commercial contexts, other mechanisms for choice may be appropriate, such as opt-out agreements. In some situations, a reasonable inference of meaningful consent may be drawn from the actual behavior of consumers. For instance, many businesses use models conditioning the provision of free or low-cost goods or services to consumers in exchange for use of their personal information. We understand the reference to consent in this paragraph as emphasizing those contexts where such explicit consent is important, not to contexts where such a requirement serves little purpose.

We understand this resolution to be consistent with longstanding U.S. views regarding the ICCPR, including our position on Articles 2, 17, and 19, and interpret it accordingly. The United States further reaffirms its longstanding position that a state’s obligations under the Covenant are applicable only to individuals within that state’s territory and subject to its jurisdiction, and interpret the resolution, including PP20, PP22, and PP28, consistent with that view. Further, we reiterate that the appropriate standard under Article 17 of the ICCPR as to whether an interference with privacy is impermissible is whether it is unlawful or arbitrary and welcome the resolution’s reference to this standard. While the resolution references a view held by some regarding what they refer to as the principles of legality, necessity, and proportionality, Article 17 does not impose such a standard and states are not obligated to take such principles into account in implementing their obligations under Article 17 of the ICCPR. For this reason, we dissociate from OP4.

We also are pleased the resolution supports the consideration of legal frameworks designed to enhance data protection and privacy safeguards, and note that legal frameworks implementing appropriate and effective controls, oversight, accountability, and remedies can effectively protect privacy rights consistent with international human rights law, whether they are in the form of legislation, regulations, or policies, and whether they are context or sector-specific or comprehensive, and whether they include a national independent authority.

Further, the United States understands that this resolution does not imply that states must join human rights instruments to which they are not parties, or that they must implement those instruments or any obligations under them. The United States understands that any reaffirmation of prior documents in these resolutions applies only to those states that affirmed them initially.

We hope that further work on this topic, including the work of the Special Rapporteur, can touch on other areas relating to privacy rights beyond the digital environment, including examination of how abuses of privacy may be implicated in broader repression of the exercise of human rights and fundamental freedoms within states.