Experiencing the Power of International Law in Human Rights and Public Health

By: Juliana Shulman, PHRGE Fellow at UNAIDS

When beginning law school, rarely do you imagine that in your second year you will find yourself in a room full of dozens of countries’ human rights leaders as they review and discuss a document that you helped draft. Let alone a document that – eventually – may improve or save the lives of millions of people living with HIV or at risk of becoming infected with HIV. Yet, that is exactly where I found myself earlier this month, in the fall of my 2L year. Shulman photo

As a PHRGE fellow co-oping in Geneva with UNAIDS (the Joint United Nations Program on HIV/AIDS), I have had the rare opportunity to see firsthand the power and politics of human rights, law, and public health, intersecting on the global stage. As a member of UNAIDS’ Human Rights and Law team, I have now worked with an international team of human rights lawyers to draft amicus briefs for ongoing litigation about the reproductive rights of women living with HIV. I have explored the ways that criminalization and punitive laws (targeting sex workers, same-sex relations, and drug users) hinder public-health efforts. And I have drafted reports on ensuring zero discrimination against people living with HIV in health-care settings.

But in addition to the work that I have helped advance, perhaps most remarkably, to me, is that I have had the opportunity to witness firsthand how international agencies work.

Like many who go to law school, I came to Northeastern filled with passion for social change and grasping for the tools necessary to make a meaningful difference. Countless times throughout my undergraduate, graduate, and legal training and as an organizer at an international advocacy organization, I have turned to reports, treaties, resolutions, and charters drafted by UNAIDS and other international agencies. I had looked up to these agencies and their immense power with curiosity and a bit of awe.

And yet – almost immediately upon my arrival in Geneva – I was recruited by a colleague to help draft one of these very documents. In particular, I helped research and draft a U.N. Human Rights Council resolution to commemorate the 20th anniversary of the International Guidelines on HIV/AIDS and Human Rights with a high-level panel on the current status of human rights and HIV.

The Guidelines were a groundbreaking document when they were introduced; twenty years after their original introduction, the HIV epidemic, global public health, and the human-rights perspectives have changed immensely. While the resolution and the resulting panel seemed fairly trivial at first, they lay the necessary groundwork to have a much deeper global discussion of the current human rights issues at the core of HIV prevention, testing, and treatment, particularly for key populations impacted by HIV around the world.

Suddenly, I was not simply researching U.N. resolutions from a law school library. Now I was on the other side of the table, providing technical assistance and strategizing for political support as UNAIDS helped quickly usher the resolution from a mere idea to a meaningful vote. I was answering emails from countries’ representatives to the Human Rights Council, and helping to provide the legal and public-health background to advance this issue. I was watching as countries formed small alliances on particular issues contained within the resolution, standing together to voice their support for or their desire to omit specific words, sentences, and ideas.

This is how I found myself – mere weeks into my internship – in a room of dozens of languages and backgrounds watching the United Nations Human Rights Council unanimously agree to adopt a resolution that I helped craft, research, and revise, after having witnessed seemingly endless political – and sometimes heated – discussions about everything from LGBTQ rights to the rights to comprehensive sexual education. I watched as international politics merged with the linguistic powers of the law, on something that, ultimately, may have a substantive impact on individuals’ experiences and public health.

While the mysterious world of international law is, admittedly, still quite a mystery, it is all becoming a bit more clear. The veil surrounding international agencies has been just a little bit lifted to reveal the complicated and frankly, sometimes dreary, world of politics that lays underneath.  As I prepare to return to law school next month, I look forward to bringing these experiences into the classroom and into my sprouting career in public health law.

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Bringing Privacy Protections into the Digital Age, One (Big) State at a Time

Bringing Privacy Protections into the Digital Age, One (Big) State at a Time

By: Mike Godbe, PHRGE Fellow at Electronic Frontier Foundation

Original Mural located in EFF’s San Francisco office by EFF Art Director, Hugh D'Andrade

Original Mural located in EFF’s San Francisco office by EFF Art Director, Hugh D’Andrade

Earlier this month, the Governor of California signed the Electronic Communications Privacy Act (CalECPA), which requires that police in California get a warrant before they can search an electronic device, obtain digital records like emails and text messages, or obtain a user’s past or future location information.

Most importantly, evidence obtained in violation of CalECPA is inadmissible in criminal cases.

California is only the third state to have so far offered protections for both electronic content as well as location information (along with Maine and Utah), but with a population larger than Canada’s that encompasses about 12% of the total U.S. population, this is no small deal.

Attorneys at the Electronic Frontier Foundation (EFF), the ACLU of Northern California, and the California Newspaper Publishers Association worked together to write and sponsor the bill. Lead by activists at the EFF, a campaign to build support among a wide array of groups was key the bill’s ultimate success. Moreover, this campaign got the state’s most influential law enforcement organizations – the state’s District Attorney, Police Chiefs, Sheriffs’, and Law Enforcement Associations – to all drop their opposition to CalECPA.

Writing good law is one thing, but organizing a campaign to build support is another. Without the efforts of activists at the EFF, it is highly unlikely that the bill would have passed, let alone with two-thirds support from both houses of congress.  And as it turns out, getting that two-thirds’ support was extremely important.

Without a supermajority, criminal defendants would not be able to suppress evidence collected in violation of CalECPA, which would have meant these new laws would have merely created nominal rights without actual remedies.  Luckily, thanks to the efforts of a diverse coalition, CalECPA did pass with a supermajority and does include suppression.

In order to see why CalECPA’s supermajority was so critical, it is important to understand a bit about the ‘fruit of the poisonous tree doctrine’ and the California ballot initiative process.

The ‘fruit of the poisonous tree’ doctrine embodies a straightforward and principled idea: that law enforcement officers cannot use illegally obtained evidence against criminal defendants. Without it, police would be incentivized to break the law to gather incriminating evidence (e.g. warrantless searches, compelled confessions, etc).  In essence, the doctrine says that police cannot break the law to make their case (i.e., cannot yield fruit from a poisonous tree).

However, when common law rules and statutes contradict each other, the statute generally prevails. California has a ballot initiative process by which citizens can bypass the legislature and enact statutes by way of popular vote, and in 1982 Californians chopped down the ‘fruit of the poisonous tree’ doctrine with the passage of Prop. 8 (this is an earlier Prop. 8 than the famed 2008 law that rendered same-sex marriage in the state illegal).

The 1982 proposition was a ‘tough-on-crime’ initiative that added a new section to the state constitution, which included a deceptively named “Right to Truth-in-Evidence.”  This “right” stated that all “relevant evidence shall not be excluded in any criminal proceeding” unless “by a two-thirds vote of the membership in each house of the legislature.”  Essentially, this means that any evidence that is “relevant” is admissible – even if the police violated the law to obtain it – unless the law the police violated passed with a supermajority in both houses of congress

States cannot diminish rights guaranteed by the federal constitution, so in practice the “truth in evidence” law only applies to state-specific protections that go above and beyond those guaranteed by the federal constitution.  So, police in California cannot use evidence against criminal defendants obtained pursuant to a warrantless home invasion or some other search or seizure that violates the federal constitution.  However, the Supreme Court of California has found additional protections to be guaranteed by the state constitution, which go above and beyond those provided by the federal constitution. For example, the California constitution has stronger privacy protections than the Fourth Amendment when it comes to one’s expectation of privacy in phone records, bank records, garbage left for pickup, and overhead aerial surveillance.  Because of Prop. 8, a criminal defendant cannot suppress relevant evidence collected in violation of Thus, these protections are essentially meaningless if you are a criminal defendant whose rights have been violated.

Since there are pretty much[1] no federal laws or broad Supreme Court decisions mandating warrants for searches of electronic communications or location information, CalECPA has created privacy rights that go above and beyond those currently guaranteed by the 4th Amendment. Thus, it was imperative that CalECPA passed with a supermajority, and it is cause for genuine celebration that it did.

While gaining these protections in California is a momentous achievement, law enforcement should be required to get a warrant to read anyone’s emails or track his or her location.  The last federal laws that provided standards for collection of electronic communications were passed before the internet was a thing and before people carried tiny computers full of their most personal communications in their pockets.  If you support these protections on a national level, contact your congresspersons to tell them to bring our privacy protections into the digital age: http://www.digital4th.org/

[1] The Secured Communications Act does require a warrant for the content of electronic storage is less than 180 days old (e.g., emails from within the past six months).  Given many people’s habit of storing years worth of text messages and emails on third party servers (e.g., those of your cell phone companies and Google), this 180-day warrant requirement is a temporary and limited solution at best.