US State Department Releases Guidance to Help US Companies Prevent Foreign Governments from Misusing their Products or Services with Surveillance Capabilities

Mr. Mike Pompeo, Secretary,  US State Department
Mr. Mike Pompeo, Secretary, US State Department

The U.S. State Department has released guidance to assist U.S. companies seeking to prevent their products or services with surveillance capabilities from being misused by foreign government end-users to commit human rights abuses.

Announcing the release of the guidance document on September 30, 2020, State Department spokesman, Mr. Morgan Ortagus, noted that “Too often, products or services with surveillance capabilities are misused by foreign governments to stifle dissent; harass human rights defenders; intimidate minority communities; discourage whistle-blowers; chill free expression; target political opponents, journalists, and lawyers; or interfere arbitrarily or unlawfully with privacy.”

He accused Governments of employing these items as part of a broader state apparatus of oppression that violates and abuses human rights and fundamental freedoms, including freedoms of expression, religion or belief, and association, and the right of peaceful assembly.

Mr. Ortagus said: “To help minimize this risk, the U.S. Department of State developed voluntary human rights due diligence guidance to help U.S. businesses conduct a human rights impact assessment on relevant products or services, and to provide them with a series of considerations to weigh prior to engaging in transactions with governments.”

Describing the guidance as “a first-of-its-kind tool” to implement the UN Guiding Principles on Business and Human Rights on this issue, he explained that it is intended to be particularly helpful for U.S. businesses that want to undertake a human rights review when the U.S. government does not require an authorization for export.

The State Department said in the document that products or services with intended and unintended surveillance capabilities have the potential to provide positive contributions to a country’s economic, defense, and societal well being.

For example, it noted, such products or services can be used to strengthen government end-user network security in a rights-protecting manner such as protecting election systems from interference. Therefore, when used appropriately, such products or services can help resolve urgent challenges facing society.

However, the State Department pointed out that at the same time, these products or services can be misused to violate or abuse human rights when exported to foreign government end-users or private end-users that have close relationships with governments that do not demonstrate respect for human rights and rule of law.

It said: “In some cases, foreign governments have misused such products or services to subject entire populations to arbitrary or unlawful surveillance, violating or abusing the right to be free from arbitrary or unlawful interference with privacy as set out in the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). In other cases, governments employ such products or services as part of a broader State apparatus of oppression that violates and abuses human rights and fundamental freedoms enumerated in the UDHR, including freedoms of expression, religion or belief, association, and peaceful assembly.”

The State Department observed that misuse of such products or services “can take many forms, including to stifle dissent; harass human rights defenders; intimidate minority communities; discourage whistle-blowers; chill free expression; target political opponents, journalists, and law­yers; or interfere arbitrarily or unlawfully with privacy.”

It stressed that arbitrary or unlawful interference with individual priva­cy is a particular concern since such interference may also impede the enjoyment of other human rights, includ­ing the rights to freedom of expression, hold opinions without interference, freedom of association and peaceful assembly, and religion or belief.

The Statement Department described these and other rights as being among the foundations of any society, saying they underpin a rules-based international order.

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