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U.S. Explanation of Position on HRC Resolution on the Right to Privacy in the Digital Age
March 23, 2017

A/HRC/34/L.7/Rev 1

Explanation of Position by the United States of America

Human Rights Council 34th session
Geneva, March 23, 2017

Mr. President,

The United States appreciates the efforts of Germany and Brazil, and we join consensus on today’s resolution 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 the right to privacy.  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 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 safeguards of data protection and safeguards against discriminatory use.  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 other situations, a reasonable inference of meaningful consent may be drawn from the actual behavior of consumers.  For instance, many legitimate 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 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 within that State’s territory, and interpret the resolution, including PP18, 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 consistency with what they refer to as the principles of legality, necessity, and proportionality, Article 17 does not impose such a standard.

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 can touch on other areas relating to privacy rights beyond the digital environment.