A New Take on Tithing
Claude Rosenberg and Tim Stone
The Great Divide in American Giving
Arthur C. Brooks
Salvation in Court: The Salvation Army v. Russia
Non-Profit Organizations in South Africa: Reaping the Benefits of the Income Tax Campaign
Tessa Brewis and Ricardo Wyngaard
Velvet Revolution in Iran?
Martin Beck Matuštík
NGOs and Their Role in the Global South
Toward an Economic Interpretation of the Nondistribution Constraint
Guiding Principles on Non-Governmental Organizations (NGOs)
United States Department of State
- - - - - - - - - -
Since the Russian Federation’s emergence in 1991, its laws governing free speech and the right to association have been studied and scrutinized by the outside world, most notably by the United States. The state of civil society in Russia during the political upheavals of the early 1990s, as well as throughout the last decade of relative transitional stability, has been a source of optimism, concern, and speculation: Would the “New Russia” promote a free exchange of ideas and tolerate dissent? The answer, after the new non-governmental organization (NGO) legislation passed this year, unfortunately appears to be a resounding no.
On January 10, 2006, the Russian Federation passed a law addressing the situation of NGOs in Russia. This law, officially entitled “On Introducing Amendments into Certain Legislative Acts of the Russian Federation,”2 came into effect on April 15, 2006. In common parlance, its vague title has been replaced by “Russian NGO Law” to reflect the actual target of the legislation, namely nongovernmental organizations. The full consequences of this law are not yet known, because no prosecution has been brought to date; it remains to be seen, therefore, how this law will be applied and how courts will interpret its provisions.
The language of the law, however, significantly expands government control over NGOs and considerably restricts the right to association and the right to privacy of NGOs and NGO members. The Council of Europe reviewed a draft of the law and declared many of the provisions problematic.3 The Russian Government then revised its law, incorporating several recommendations made by the Council.4 Many restrictive provisions remained, however. The Russian Government also added new amendments in the final version limiting the rights of foreign NGOs and NGO members that were not in the original draft evaluated by the Council of Europe.5 These amendments potentially violate international and national law. This analysis will review the NGO Law6 and then address the possible breaches of the legislation, law by law, article by article.
Provisions of the Russian NGO Law
The Russian NGO Law has introduced new documentation requirements for NGOs. In order to register under the new law, organizations must fill out roughly 100 pages of documents, listing detailed personal information about each founder and each member.7 If any of the founders are deceased, the organization must provide death certificates. These new requirements create an excessive burden on NGOs, and any mistake in the paperwork can be grounds for denial of registration, essentially providing the government with another excuse to dissolve – or refuse to recognize legally – organizations.
A letter condemning the new legislation from Amnesty International commented: “The experience to date has been that the law is unduly burdensome, diverting resources from substantive programs, while using a regulatory framework that can be arbitrarily applied, has key provisions which lack a precise legal definition, and sanctions that are disproportionate.”8 As of June 29, 2006, forty foreign NGOs had applied for official registration under the new law – and not a single one was successful.9 All received notification that they did not comply with the documentation requirements and must resubmit their applications. The fact that all forty were denied registration indicates how complicated the new requirements are and confirms NGOs’ fears that this law can be used to harass NGOs, creating unnecessary work for them and excuses for the government to deny organizations registration.
Between 500 and 2,200 foreign NGOs work in Russia, and all had to obtain registration by October 18, 2006.10 As of October 19, Human Rights Watch,11 Amnesty International, the Danish Refugee Council, two branches of Doctors without Borders, and other prominent international NGOs were forced to stop working temporarily for allegedly failing to comply with registration requirements.12 Even if other NGOs have more success with the process, this law has already succeeded in disrupting human rights work within Russia.
Many organizations are responding by either re-registering as commercial in order to avoid the documentation requirements13 or uniting to simplify the registration procedures. For example, approximately twenty organizations in Murmansk that were denied registration under the new NGO Law have decided to join forces, rather than each organization having to resubmit all 96 pages of registration forms.14
In response to international and national criticism concerning these documentation requirements, President Vladimir Putin has replied that additional bureaucracy was not his goal: “This law was meant to create order in this sphere, not to stiffen” registration requirements. “If we find that there is, in fact, a stiffening of the regulations, I myself am ready to act to initiate changes. . . .”15 Whether he keeps his word remains to be seen; there is no doubt that the new documentation requirements have unnecessarily burdened NGOs. As an aid worker in Chechnya described the NGO Law, the excessive and impossibly difficult documentation forms have turned NGO registration into “Kafka’s wet dream.”16
Additionally, NGOs must complete annual reports, listing all foreign donations received and the ways in which those funds were used. This documentation requirement essentially outlaws anonymous donations. It also complicates large-scale public fundraising; NGOs do not have the necessary personal information about each small donor, who, for example, puts ten dollars in a collection bucket at a rally. These requirements are especially problematic for NGOs involved with human rights, because these organizations receive most of their financial support from foreign sources.17
When confronted with these potentially dire consequences of the NGO Law, President Putin has repeatedly reconfirmed his stance against foreigners participating and sponsoring Russian NGOs: “I personally – I will speak completely openly and honestly – have only one concern. I will always speak and fight against foreign governments financing political activity in our country, just as our government should not finance political activity in other countries.”18 International NGOs subsist only through donations from international sources, however, and international cooperation is therefore necessary for them to survive.
The Russian NGO Law limits who may found, participate, or join an NGO to individuals domiciled in Russia, thus denying foreign nationals or stateless persons full freedom of association. Additionally, the NGO Law forbids certain others from becoming NGO members, including “undesirable” foreigners, individuals on a money-laundering and anti-terrorist financing watch list, individuals found by the court to have participated in extremist activity, individuals currently imprisoned, and members of organizations that have been suspended under the Law Countering Extremist Activity. The NGO Law does not define “undesirable” or “extremist,” and the money-laundering and anti-terrorist financing watch list is a non-published private government document. In other words, without knowing the definition of the government’s terms or who is on the government’s watch list, NGOs cannot protect themselves from accidentally accepting “illegal” members and thus facing dissolution.
The NGO Law expands the government’s powers to supervise and thereby control NGO activity. It gives the government the authority to review an NGO’s private documents, including those related to financial and policy decisions, as well the ability to send a government representative to any NGO meeting, including private strategic and financial meetings. These provisions, if exercised broadly, would drastically limit the ability of NGOs to function as independent organizations. If an organization is in constant fear that its documents will be requested or its meetings observed, it can neither operate efficiently nor remain uninfluenced by the political leanings of the government.
Possible Violations of International Law
European Convention on Human Rights
The Russian NGO Law, as written, allows the government to violate the European Convention of Human Rights.19 Though it is unclear how the law will be applied, the text potentially violates five articles of the ECHR, most notably Article 11, the affirmative duty to protect the right to association.20
Article 1: Obligation to respect human rights
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention.
The NGO Law, by restricting founding or participating in an NGO to citizens or Russian domiciles, violates Russia’s duty under Article 1 to protect the rights guaranteed by the ECHR to all persons within Russia’s jurisdiction. Because the right to participate in an NGO has been recognized as protected by the right to association and the right to free expression, Russia is bound by the ECHR to protect the rights not just of Russian domiciles but also of all foreigners and stateless persons living in Russia.21 The European Court of Human Rights has interpreted “within” the country’s jurisdiction to apply at least to all individuals on the country’s territory.22 The legal concept of jurisdiction also extends the guarantee to all individuals subject to the nation’s authority, regardless of whether they are on its territory.23
In its analysis of the NGO Law, the International Center for Not-for-Profit Law demonstrates that ECHR Article 1 was rephrased, from “all persons residing within their territories” to “within their jurisdiction,” in order to expand the application of ECHR rights and ensure that text not be interpreted too narrowly.24 Thus, there is no question that the ECHR intended “within their jurisdiction” to apply not just to individuals domiciled in Russia but to all persons living on Russian territory.
Article 8: Right to respect for private and family life
The NGO Law’s provision allowing government representatives to attend NGO events potentially violates ECHR Article 8. Unrestricted government access to all NGO meetings, fundraising and project brainstorming meetings included, not only undermines the purpose of nongovernmental organizations (if government employees attend NGO meetings, one might argue, NGOs cease being strictly nongovernmental organizations), but also violates the ECHR guarantee of privacy. Article 8 has been interpreted to protect professional organizations from arbitrary interference by the government. In Niemetz v. Germany, the court held that the right to privacy extends to places of work, because an individual’s private life is also conducted at the office.25 In Halford v. United Kingdom, the European Court of Human Rights specifically applied this right of privacy to public organizations.26 As both professional and public organizations, this right to privacy applies to NGOs as well.
Article 10: Freedom of expression
The NGO Law, by denying foreign nationals and stateless persons the right to found or participate in an NGO in Russia, violates the fundamental right to expression. Being denied access to civil organizations deprives these individuals of their right to participate in civil society and express themselves. This is a clear violation of Article 10, which through the language of Article 1 is guaranteed to all individuals within Russia’s jurisdiction, including non-domiciles.
Article 11: Freedom of assembly and association
The NGO Law violates the right to association in particular. The expanded supervision allowed to the government – namely, the right to attend NGO meetings – threatens the right to free association; the presence of government officials could intimidate NGO members from not participating or even attending meetings. Additionally, by allowing the government discretion to terminate particular programs or activities of NGOs,27 the law violates the right to association of the participants in the particular programs or activities. The ECHR allows the government to close NGO programs only if “necessary to a democratic society in the interests of national security or public safety.” Without any guidelines as to when termination of programs is allowed, this law appears to grant the government complete discretion, conflicting with the principles and text of the ECHR.
Article 18: Limitation on use of restriction on rights
The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.
While the Convention allows certain restrictions to be placed on the right to associate (see Articles 10 and 11), the vague restrictions allowed by the NGO Law are not permitted. The NGO Law similarly violates ECHR Article 18 by denying the right to associate for “undesirable” non-domiciles, individuals or organizations found to be participating in extremist activity, individuals appearing on a money-laundering or anti-terrorist watch list, and prison inmates. It is unclear how the Russian government defines “undesirable” or “extremist activity,” and the money-laundering and anti-terrorist watch list is not published. An NGO has no way of knowing if its members are on the list and, if informed by the government, no way of checking the truth of the accusation.28 Additionally, restricting the rights of prison inmates violates the Russian Constitution, Article 32 (3).29
Universal Declaration of Human Rights
In addition to violating provisions of the European Convention of Human Rights, the NGO Law violates articles of the Universal Declaration of Human Rights.30 The NGO law diminishes the opportunities for civil discourse and deprives Russian and international citizens of basic human rights, rights so fundamental as to have been included in the Universal Declaration of Human Rights. This section will briefly explore how the NGO Law violates Articles 2, 19, and 20.
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
The NGO Law requires that a foreigner be domiciled in Russia in order to found or even participate in an NGO.31 This restriction on who is allowed to found an organization violates Article 2 by distinguishing foreign nationals and stateless persons from Russian citizens and reserving the right to association to Russian citizens.
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
The NGO Law allows the government to request documents from NGOs’ leaders regarding policy and finance decisions.32 The Law also lets the government attend all NGO events, including meetings.33 This expansion of government authority over NGO practices violates Article 19 by restricting NGO participants’ freedom of opinion and expression and imposes a chilling effect on both written and oral discussions.
By implementing stringent requirements for NGO registration, the NGO Law expands the power of the Russian government to deny registration to new NGOs and disband existing ones due to a failure to register properly. This broad allowance for the government to control the formation and lifespan of NGOs violates Article 20. Though most governments have some registration requirements,34 the limitations that the NGO Law places on Russian organizations are unduly onerous and place excessive discretion in the government’s hands.
International Covenant on Civil and Political Rights
The fundamental rights to assembly, association, and expression are also codified in the International Covenant on Civil and Political Rights (ICCPR), a document written in 1966, signed by 104 countries, and ratified by 103 countries, including Russia.35 The NGO law violates no fewer than four articles.
The NGO Law’s requirement that every organization submit personal information on all founders, participants, and donors potentially violates the ICCPR prohibition on governmental interference with individuals’ privacy. To the extent that an NGO is recognized as a legal entity, the documentation requirements also violate the rights of an organization to privacy in its affairs and finances.36
a. For respect of the rights or reputations of others.
b. For the protection of national security or of public order (ordre public), or of public health or morals.
The NGO Law, by allowing the government to request resolutions from NGOs as well as send representatives to NGO meetings, potentially violates the right to hold opinions without interference. If NGO members are aware that any document can be requested and any meeting infiltrated, they will be more hesitant to express their opinions openly. Once these opinions are expressed, either in written or spoken form, the government’s ability to request resolutions documenting these opinions or attend meetings where these opinions are to be discussed can only be described as “interference.”
Additionally, the NGO Law’s restrictions on who can found and participate in civil organizations violate this Article’s guarantee of the right to seek, receive, and impart information.
The third paragraph of this Article acknowledges the possibility that these rights may not be unlimited; in the event that the right to express and share opinions threatens others’ rights or endangers national security or health, these rights can be curtailed. Similar language appears concerning possible restrictions on the right to free association in the European Convention of Human Rights.37 As the European Court of Human Rights confirmed, however, these restrictions can be justified only by “convincing and compelling reasons.”38 The Russian government’s explanation that this law is needed to combat terrorism39 is vague. Putin’s additional justification is similarly unconvincing; the Russian President has been quoted as saying that the NGO Law is “aimed at preventing the intrusion of foreign states into Russia’s internal political life . . . .”40 However compelling the purpose may be, the government has failed to explain why combating terrorism requires such stringent regulation of all NGOs.
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
The NGO Law’s restrictions on who may found and participate in NGOs similarly violate this provision guaranteeing the right to peaceful assembly. Again, the Article's limitations on the right to assembly have been construed strictly and do not permit the vague and all-encompassing restrictions outlined in the NGO law.41
This Article is recognized as guaranteeing the right to association. The language is almost identical to Article 11 of the European Convention on Human Rights, which has been interpreted by the European Court of Human Rights to include the right to form an NGO. The NGO Law violates this Article perhaps most blatantly of all Articles in the ICCPR, because of the Law’s multifaceted restrictions on this right to associate.42 The Law’s restrictions on who may form and participate in NGOs, its provisions to allow government supervision of NGOs, and its introduction of new grounds for denying registration or dissolving NGOs all undeniably contradict the right to association expressed in this Article and the protection afforded it under the ICCPR. Again, the ways in which this Article permits curtailment of the right of association do not include and in no way allow the restrictions currently in place under the NGO Law.
Organization for Security and Cooperation in Europe Principles
The NGO Law also contradicts the principles codified by the OSCE. In 1975, the former Conference on Security and Cooperation in Europe became the Organization for Security and Cooperation in Europe,43 and the 35 member states, Russia included,44 ratified 10 principles known as the “Decalogue.”45 The NGO Law violates Principle VII:
VII. Respect for human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief
The participating States will respect human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief, for all without distinction as to race, sex, language or religion.
They will promote and encourage the effective exercise of civil, political, economic, social, cultural and other rights and freedoms all of which derive from the inherent dignity of the human person and are essential for his free and full development....
In the field of human rights and fundamental freedoms, the participating States will act in conformity with the purposes and principles of the Charter of the United Nations and with the Universal Declaration of Human Rights. They will also fulfill their obligations as set forth in the international declarations and agreements in this field, including inter alia the International Covenants on Human Rights, by which they may be bound.
The NGO Law’s restrictions on who can found and participate in NGOs, as well as the expanded government supervision of NGOs, threaten the freedom of thought and conscience protected in this international treaty.46 Additionally, the burdensome registration requirements implemented by the NGO Law not only fail to “promote and encourage the effective exercise” of these freedoms, but actively deter and even punish their exercise.
The last paragraph of Principle VII references the Universal Declaration of Human Rights and International Covenants on Human Rights. Russia did ratify the Universal Declaration of Human Rights47 and signed the European Convention of Human Rights.48 By signing the OSCE Principles as well, Russia not only agreed to uphold the freedoms guaranteed by the document, but also reinforced its commitment to the other international human rights treaties it had signed; in this way, this Decalogue strengthens Russia’s duty to protect these human rights as pledged.
European Union Constitution
The NGO Law violates similar provisions of the European Union Constitution.49 Though Russia is not a member of the European Union, many Russian NGO donors and participants currently live in the European Union, and the European Union Constitution serves as a helpful example of what many countries hold to be fundamental rights.50
In the Charter of Fundamental Rights of the Union, the NGO Law violates three Articles:
Freedom of thought, conscience and religion
The right to conscientious objection is exercised most effectively through the right to association. Without the right to meet freely, citizens can only privately object, weakening the efficacy of any “conscientious objection.” By denying individuals the right to association, the Russian Federation is indirectly violating their right to freedom of thought, conscience, and religion, and their right to conscientious objection.
Freedom of expression and information
The NGO Law allows the government to attend NGO meetings, threatening the right of NGOs and NGO members to hold opinions freely. Additionally, government attendance at private meetings constitutes “interference by public authority” and violates this Article’s provisions. The NGO Law’s stipulations enabling the government to control who founds and joins an NGO, as well as what programs an NGO is allowed to implement, likewise constitute “interference by public authority.” If the government denies individuals the right to join organizations or carry out their organizations’ projects, this intervention undoubtedly amounts to government interference.
Freedom of assembly and of association
This Article codifies the right to assembly and to association, rights particularly threatened by the NGO Law’s provisions. This Article also guarantees the right to “freedom of association at all levels,” something that NGOs provide. By restricting the right to participate in NGOs, the Russian Government is limiting individuals’ right of association at all levels.
Possible Violations of Russian Law
Constitution of the Russian Federation
Besides violating international law and international treaties, the NGO Law conflicts with the Russian Constitution itself. As written, the Law potentially violates six constitutional articles. Though a breach of only one paragraph of one article would suffice to render the NGO Law unconstitutional, it is noteworthy how many constitutional provisions NGO Law potentially violates:
Paragraph 1 of this Article guarantees the Russian people the fundamental rights codified by international law. The right to association is among the basic rights recognized by international law, and the NGO Law's provisions interfering with this right violate the Russian Constitution. In this way, Russia is bound not only by multiple international treaties, which reference and reinforce one another,51 but also by its own Constitution to abide by these international treaties and protect the rights guaranteed by their provisions.
The NGO Law's provisions allowing government representatives to attend NGO meetings potentially violate the general right to privacy guaranteed by Paragraph 1 of this Article, and plainly violate Paragraph 2, which protects private communications. The financial and decision-making conversations of NGOs are undeniably private communications, and any mandatory disclosure contradicts the purpose of this Article. Additionally, this Article unambiguously prescribes that the only permissible method to restrict this right is through a court order. The NGO Law's provision offering the government blanket permission to restrict NGOs' and NGO members' privacy is therefore unconstitutional.
Paragraph 1 of this Article guarantees the right to expression, which the NGO Law threatens to violate by allowing government attendance at NGO meetings. NGO participants will not be able to exercise their right to free speech if they are monitored or in constant fear of being monitored by the government.
Additionally, Paragraph 4 of this Article protects the right to produce and receive information. The NGO Law's provision allowing the government to close NGO programs interferes with NGOs' and NGO participants' right to produce information as well as the public's right to receive information. Moreover, the NGO Law's restrictions on who can participate in an NGO violate the rights both to produce and receive information of those individuals forbidden to participate in NGOs.
Most significantly, the NGO Law violates Article 30, Paragraph 1, which codifies the fundamental right to association. Besides being expressed, as shown, in multiple international treaties, this right is stated clearly in this Article of the Russian Constitution. The expanded government supervision and interference allowed by the NGO Law is a serious breach of the Russian government’s duty to protect the right to association.
Citizens of the Russian Federation shall have the right to gather peacefully, without weapons, and to hold meetings, rallies, demonstrations, marches and pickets.
This Article also guarantees the freedom of association and reinforces the Russian government’s duty to protect the right to association. An NGO is an organization defined by the fact that its participants gather peacefully and hold meetings; the NGO Law’s interferences with individuals’ ability to continue this activity therefore violates the Constitution.
Article 32, Paragraph 3 restricts the rights of Russians convicted of crimes, namely convicted criminals lose their right to vote or be elected to office. This Article imposes the only restrictions on the rights of the convicted52 and says nothing about the right to association or the right to free expression. The NGO Law, by denying convicted criminals the right to found or participate in NGOs, violates the Russian Constitution.
Once again, Russia has bound itself by its Constitution to respect basic human and civil rights. Paragraph 2 expressly prohibits laws restricting these rights. Thus not only are the provisions of the NGO Law and their potential consequences unconstitutional, but the very act of passing the Law violated the Russian Constitution.
Additionally, Paragraph 3 unambiguously describes the sole permissible grounds for restricting basic rights. This provision allows the Russian government to suspend civil liberties only in the face of such national emergencies as a military invasion or an uncontrollable epidemic.53 By contrast, the NGO Law appears to provide the government with the authority to limit or deny completely the right to association essentially at its discretion. In this way as well, the NGO Law is in direct conflict with the Russian Constitution.
Possible Conflicts with Foreign Law
Potential Violations of United States Privacy Law
The past sections have shown the NGO Law’s potential violations of the rights of individuals with regard to their participation in NGOs. The NGO Law’s restrictions on who may found or join an organization and what programs NGOs can implement were analyzed in terms of their potential conflict with international treaties and national constitutions. This section, by contrast, will explore a different aspect of the NGO Law – namely the new requirement that Russian NGOs provide extensive annual documentation on donations received – and the potential constitutional consequences this requirement has for foreign donors. In particular, this section will analyze how the Russian NGO Law’s documentation requirements potentially violate the rights of American citizens.54
The NGO Law requires that Russian NGOs report complete personal information about each foreign donor. The government has not justified this amendment or explained how it will store or use the information. The collection of personal information for any purpose raises issues of confidentiality; this silence on the part of the government leads to concerns that the government may collect excessive information on individuals of interest, and retain and use the information for purposes other than NGO documentation.
This requirement creates unnecessary work and additional hurdles for NGOs, too, especially for smaller NGOs, many of which are already overburdened and understaffed. An NGO that fails to comply with the documentation requirement can be liquidated, giving the government yet another discretionary tool for controlling NGOs. Additionally, this amendment has the unintended consequences55 of essentially outlawing anonymous donations and complicating public fundraising campaigns, which customarily encourage many people to make small donations.56
Most significant, however, is the potential for this requirement to violate foreign constitutions as to the privacy rights of foreign citizens. In the United States, for example, privacy of personal information is protected by the Constitution57 as well as both state and federal legislation.58 This legislation has been interpreted to guarantee multiple privacy rights: the Supreme Court has recognized the right to bodily privacy, membership in political groups, informational privacy, privacy in physical places, and decisional privacy.59 The NGO Law’s documentation requirement threatens both the right to privacy in membership in political groups and the right to informational privacy.
If the Russian government does violate an American citizen’s right to privacy, the individual's recourse is not self-evident. The potential violations will be addressed, followed by some possible remedies.
I. Privacy in Membership in Political Groups
By requiring United States citizens, whether living in Russia, the United States, or elsewhere, to give personal information when they donate to a Russian NGO, the Russian NGO Law potentially violates American donors’ right to privacy in membership in political groups. Not only does this requirement outlaw anonymous donations, as noted previously, but it also forces donors to reveal any Russian organizations they sponsor or belong to.60 The U.S. Supreme Court has held, however, that individuals have a legally cognizable right to privacy concerning their membership in political organizations. In NAACP v. Alabama, for example, the Supreme Court found that the organization was “immune[e] from state scrutiny of membership lists.”61 The NAACP had refused to comply with a court order to disclose its members, and the Supreme Court upheld the NGO’s decision as protected by its right to privacy under the Federal Constitution.62
American donors have a similar right to privacy concerning their membership in or involvement with Russian NGOs. The Supreme Court protected the NAACP’s right to privacy in the face of a lower court order to the contrary63; given the Russian government's failure to address why it needs such personal information or how it will handle the information, such a breach of privacy appears even more unnecessary.
II. Informational Privacy
Whereas United States legislation exists to protect individuals’ right to privacy of information on a general level, such as privacy of personally identifiable driver information64 or privacy of prescription drug use,65 personal information regarding individuals’ business activities is especially protected, as demonstrated by such legislation as the Fair Credit Reporting Act,66 the Fair Debt Collection Practices Act,67 the Right to Financial Privacy Act,68 and the Health Insurance Portability and Accountability Act.69
These laws do not specifically address NGOs, however, leaving undefined whether and how the laws apply to NGOs and their members.70 Though courts are divided on whether to treat donors as consumers,71 donors face the same threats of intrusion to their privacy as consumer. As such, they should be protected by consumer informational privacy laws.
Though donations to Russian NGOs are technically gifts and not sales, the interests of the donors are the same as those of consumers who trade with Russian organizations. Donations and sales differ in the nature of the transactions, but, from a broader perspective, donors and consumers both expect to pay a predetermined recipient for a predetermined purpose. As Ely Levy72 and Norman Silber73 explain:
Any distinction based on the difference between a gift and a sale fails to take into account the purpose of all privacy laws, namely, to control the dissemination of personal information without the consent of the persons about whom the information is collected, or, as Justice Brandeis insisted more than a century ago, the assurance of the right to be let alone.74
In this way, donors require the same informational privacy as consumers and must be protected by privacy legislation.
Surprisingly, given that many of its provisions have reduced individuals’ and organizations’ privacy in the United States, Ely and Silber have demonstrated that the USA PATRIOT Act significantly strengthened the rights of American donors: the PATRIOT Act amended the Telemarketing Act to include “charitable” activity.75 By explicitly mentioning charities, this amendment brings charitable institutions under the jurisdiction of the Federal Trade Commission Act.76 In other words, the FTC now has explicit authority to protect the privacy interests of NGOs and their members.
In this context, American donors have an expectation of privacy in dealing with Russian NGOs, and any breach of this privacy can be seen as unlawful. By requiring personal information from donors, the NGO Law threatens American donors’ right to informational privacy.
III. Possible Remedies
The question remains, however, how a United States citizen might bring suit against the Russian government for such a constitutional violation. Two options are possible: individuals can bring suit themselves, or the suit can be brought by the public, namely by the Federal Trade Commission (FTC).77 The following possibilities have been suggested as remedies for American donors domestically.78 This analysis proposes them as potential remedies in the international context as well.
A. Private Claim
Under international law, nations are not immune from claims by foreign citizens, especially concerning commercial and business relations.79 The Foreign Sovereign Immunities Act makes a point of noting that consent to jurisdiction is not required for suits regarding commercial activities between foreign states and United States citizens:
No separate express consent to jurisdiction shall be required in addition to the waiver itself;
(2) in which the action is based upon a commercial activity carried on in the United States by the foreign state or instrumentality; or upon an act performed in the United States in connection with a commercial activity of the foreign state or instrumentality elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state or instrumentality elsewhere and that act causes a direct effect and substantial effects in the United States; for purposes of this paragraph (2)80
This act also gives Congress the power to declare foreign governments and businesses vulnerable to suits unless it “would serve the interests of justice and would protect the rights of ... foreign states, instrumentalities, and litigants in United States court.”81 Barring such a decision, however, a United States citizen could potentially bring a civil case against the Russian government in the federal courts, which have original jurisdiction pursuant to 28 U.S.C. 1330 (actions against foreign states).82
B. Public Legislation
The Federal Trade Commission (FTC) is responsible for preventing unfair business practices in the United States.83 Its authority has been interpreted to include policing certain kinds of privacy invasions.84 So, though such a case has not yet been brought, the FTC may have the authority to sue the Russian government on behalf of American citizens for a violation of their privacy.
Though some countries, such as China and Korea,85 have restrictive NGO laws, many nations, notably Russia’s fellow G8 countries, do not.86 This section will briefly explore how the Russian NGO Law differs from American NGO legislation.
United States Constitution
Similar to the Russian Constitution, the United States Constitution protects the rights to association and to privacy, both of which the NGO Law potentially violates.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
This Amendment protects the right to free speech and the right to assembly. Though the First Amendment does not specifically name the right to association, the Supreme Court acknowledged that its “cases have recognized that it [First Amendment] embraces such a right. . . .”87 The Supreme Court has interpreted the right to association in the following way:
Our decisions have referred to constitutionally protected "freedom of association" in two distinct senses. In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty. In another set of decisions, the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment – speech, assembly, petition for the redress of grievances, and the exercise of religion.88
The Russian NGO Law restricts the right to association in both lines of cases. By refusing foreign nationals and others the freedom to participate in NGOs, the NGO Law interferes with their right to form relationships with those they choose. Additionally, by reserving the power to deny NGOs registration or to terminate projects, the Russian government violates the second form of freedom of association, concerned with free speech and assembly. Accordingly, the Russian NGO Law would be found unconstitutional by American standards.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This Amendment has been interpreted to protect an individual’s “reasonable expectation of privacy,”89 which extends to cover the home, the office, the body, personal information, and personal beliefs.90 As the previous section suggested, an enormous body of legislation protects the right to privacy in the United States. If any law similar to the Russian NGO Law were enacted in the United States, consequently, this threat to privacy would provide an additional ground for courts to rule it unconstitutional.
United States Revised Model Nonprofit Corporation Act
The Revised Model Nonprofit Corporation Act (RMNCA) was written in 1987 to serve as a guide for states in enacting their nonprofit laws.91 Most states have enacted variants of it. The Russian NGO law differs significantly from the RMNCA, most importantly in terms of NGO privacy, members and memberships, and dissolution.
I. NGO Privacy
Section 16.02. Inspection of Records by Members.
(a) Subject to subsection (e) and section 16.03(c), a member is entitled to inspect and copy, at a reasonable time and location specified by the corporation, any of the records of the corporation described in section 16.01(e) if the member gives the corporation written notice or a written demand at least five business days before the date on which the member wishes to inspect and copy.
(b) Subject to subsection (e), a member is entitled to inspect and copy, at a reasonable time and reasonable location specified by the corporation, any of the following records of the corporation if the member meets the requirements of subsection (c) and gives the corporation written notice at least five business days before the date on which the member wishes to inspect and copy:
(2) accounting records of the corporation; and
(3) subject to section 16.05, the membership list.
(c) A member may inspect and copy the records identified in subsection (b) only if:
(1) the member's demand is made in good faith and for a proper purpose;
(2) the member describes with reasonable particularity the purpose and the records the member desires to inspect; and
(3) the records are directly connected with this purpose.
(d) This section does not affect:
(1) the right of a member to inspect records under section 7.20 or, if the member is in litigation with the corporation, to the same extent as any other litigant; or
(2) the power of a court, independently of this Act, to compel the production of corporate records for examination.
(e) The articles or bylaws of a religious corporation may limit or abolish the right of a member under this section to inspect and copy any corporate record.
Whereas the Russian NGO Law grants the government power to summon documents from an NGO, the RMNCA grants this power only to NGO members and courts, and the latter only pursuant to litigation.92 In subsection (c), the RMNCA limits this power further by allowing members access to their organizations’ documents only when the member’s request is for a particular purpose, specifically tailored to that purpose, and the documents requested meet that purpose. In contrast, the NGO Law does not limit when the government can inspect an organization’s private documents, or what documents it can inspect.
II. Members and Memberships
Section 6.01. Admission.
(a) The articles or bylaws may establish criteria or procedures for admission of members.
(b) No person shall be admitted as a member without his or her consent.
Section 6.02. Consideration.
Except as provided in its articles or bylaws, a corporation may admit members for no consideration or for such consideration as is determined by the board.
The RMNCA’s section on members and memberships contrasts sharply with the Russian NGO Law’s provisions. The model statute gives NGOs complete power to determine their membership, so long as “no person shall be admitted without his or her consent.”93 Instead of being concerned with whether an NGO includes foreigners or “undesirables,” the RMNCA is concerned only with whether individuals choose to become members of the NGO.
The secretary of state may commence a proceeding under section 14.21 to administratively dissolve a corporation if:
(1) the corporation does not pay within 60 days after they are due any taxes or penalties imposed by this Act or other law;
(2) the corporation does not deliver its annual report to the secretary of state within 60 days after it is due;
(3) the corporation is without a registered agent or registered office in this state for 60 days or more;
(4) the corporation does not notify the secretary of state within 120 days that its registered agent or registered office has been changed, that its registered agent has resigned, or that its registered office has been discontinued; or
(5) the corporation's period of duration, if any, stated in its articles of incorporation expires.
The RMNCA gives the Secretary of State the power to dissolve an NGO in five specified circumstances.94 The second criterion, requiring the NGO to submit an annual report, appears the most similar to the requirements under the Russian NGO Law. It can be distinguished, however, on the basis that the required report is much briefer and simpler than the one required in Russia, and any dissolution procedure allows the organization to appeal as well as to seek to be reregistered following dissolution.95
It is noteworthy that all five circumstances involve failure on the part of the NGO to fulfill a duty, such as to pay taxes, deliver an annual report, or notify an agent of a change of address. The Russian NGO Law, in contrast, additionally allows the government to dissolve an NGO when the state finds the NGO a threat to the nation’s political independence, cultural heritage, national interests, etc. – all highly discretionary grounds largely outside of the NGO’s control.96 In other words, the RMNCA allows the state to dissolve an NGO that violates a concrete law or fails to complete a specific and unambiguous administrative duty; the Russian Federation allows the government to dissolve an NGO that it deems threatening, a vague and amorphous standard.
The Russian NGO Law is unconstitutional and violates domestic, international, and foreign law. It has been condemned formally and informally throughout the world. The United States House of Representatives even passed a Resolution in December 2005, calling for Russia to withdraw the NGO legislation drafts.97 The Law remained a controversial topic at the July 2006 G8 Summit in St. Petersburg.
A Russian colleague in St. Petersburg lamented during the G8 Summit that she was proud of her language and her country’s history, but she was still awaiting an opportunity to be proud of her government. By repealing or significantly relaxing the NGO Law, the Russian Federation could reassure the world and Russian citizens that it is ready to take seriously its obligations to its people.
1 Alison Kamhi is a second-year law student at Harvard Law School. This analysis was written at the request of Citizens’ Watch in St. Petersburg, Russia.
2 Federal Law #18-FZ.
3 Provisional Opinion on Amendments to Federal Laws of the Russian Federation Regarding Non-Profit Organisations and Public Associations. December 1, 2005. See http://www.coe.int/T/E/Com/Press/News/2005/20051206_opinion.asp
4 Council of Europe Analysis of the Russian NGO Legislation. Press release, February 17, 2006.
6 This analysis uses the unofficial ICNL English translation of the Federal Law #18-FZ. See http://www.icnl.org/knowledge/news/2006/01-19_RussianNGOLawEng.doc.
7 For example, the personal address and tax identification number is required for each founder and member. See Federal Law #18-FZ, Addendum No. 1.
8 “Amnesty International Urges Putin to Review NGO Legislation” MosNews, July 5, 2006. Found on website NCSJ, Advocates on Behalf of Jews in Russia, Ukraine, the Baltic States & Eurasia, “Russian Civil Society Examined, as G-8 Looms,” see www.ncsj.org.
9 Anastasia Kornya, “Non-Governmental Organizations Fail the Test,” Vedomosti, June 29, 2006. Translated by A. Ignatkin.
10 According to the Federal Registration Service. Id.
11 Human Rights Watch has been able to resume activities after registering on November 7, 2006.
13 According to Sergei Tsyplakov of Greenpeace Russia. Id.
14 According to Elena Kruglikova, head of Gaia Ecological Center. Id.
15 Anastasiya Lebedev, “Putin Says NGOs Won’t Be Crushed,” Moscow Times, July 5, 2006. Putin addressed NGO Activists Tuesday, July 4, 2006.
16 Oliver Bullough, “NGOs in Chechnya Told to Report to FSB,” St. Petersburg Times, July 25, 2006.
17 See John Machleder, INDEM Foundation, Contextual and Legislative Analysis of the Russian Law on NGOs (2006), 4. See http://www.indem.ru/en/publicat/Russian_NGO_Law_03252006.pdf.
18 “Putin Restates Opposition to Overseas Financing for NGOs,” RIA Novosti, July 4, 2006. See also “Putin on Charm Offensive at NGOs Meeting,” Agence France Presse, July 4, 2006.
19 For full text of the ECHR, see http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/EnglishAnglais.pdf.
20 The International Center for Not-for-Profit Law has compiled a thorough analysis of the NGO Law’s potential violations of Article 11. See Analysis of Law # 18-FZ, On Introducing Amendments to Certain Legislative Acts of the Russian Federation (February 17, 2006). Much of the information about ECHR here was taken from this analysis; many thanks to ICNL. See http://www.icnl.org/knowledge/news/2006/01-19_Russia_NGO_Law_Analysis.pdf (hereinafter “ICNL Analysis”).
22 Bankovic v. Belgium, 11 BHRC 435, para. 19/21 (2001): “As to the ‘ordinary meaning’ of the term jurisdiction in Article 1 of the Convention, the Court was satisfied that, from the standpoint of public international law, the jurisdictional competence of a State was primarily territorial. While international law did not exclude a State’s exercise of jurisdiction extra-territorially, the suggested bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) were, as a general rule, defined and limited by the sovereign territorial rights of the other relevant States.”
23 G. v. United Kingdom and Ireland (Application No. 9837/82), para. 25. Cited in ICNL Analysis at 12.
24 ICNL Analysis at 12.
25 Dec. 16, 1992, Series A, No. 251-B, 16 EHRR (1993), para. 31.
26 (1997) 24 EHHR 523, cited in Adam Warren, “Right to Privacy? The Protection of Personal Data in Public Organizations.” 103 New Library World 446-56 (2002).
27 LNCO, Article 23.
28 Federal Law #115-FZ, On Combating Legalization (Laundering) of Criminally Gained Income and Financing of Terrorism (2001). For a discussion, see ICNL Analysis at 15.
29 See Article 32 (3), discussed subsequently.
31 ICNL Analysis at 3.
34 The United States, for example, requires NGOs to complete forms and pay a filing fee for such actions as applying for a reserved name, transferring a registered name, or renewing a registered name. For a list of actions requiring filing fees, see Revised Model Nonprofit Corporation Act, § 1.22 Filing, Services, and Copying Fees (1987), available at http://www.paperglyphs.com/nporegulation/documents/model_npo_corp_act.html#1B.
36 In the United States, an organization is seen as having “at least” equal rights to a person. See Perry v. Los Angeles Police Dep’t, 121 F.3d 1365 (9th Cir. 1997) ( holding that discrimination between the exercise of First Amendment rights by nonprofit organizations and individuals is patently unconstitutional).
37 Article 11. See also ICNL Analysis.
38 Sidiroupoulos v. Greece, 4 Eur. Ct. H.R. 500 (1998) (holding that denying an NGO registration violated the organization’s right to association because exceptions to the freedom of association “must be narrowly interpreted”). See also United Communist Party v. Turkey, 4 Eur. Ct. H.R. 1 (1998) (holding that Turkey’s interference with an NGO constituted a violation of ECHR right to association).
39 See John Machleder, INDEM Foundation, Contextual and Legislative Analysis of the Russian Law on NGOs (2006), 4. See http://www.indem.ru/en/publicat/Russian_NGO_Law_03252006.pdf.
40 Barry Lowenkron, Assistant Secretary for Democracy, Human Rights and Labor, Testimony at the Hearing of the Commission on Security and Cooperation in Europe, See http://www.state.gov/g/drl/rls/rm2/2006/68669.htm
41 Sidiroupolous v. Greece; United Communist Party v. Turkey; see also ICNL Analysis at 4.
43 See Helsinki Final Act: http://www.osce.org/documents/mcs/1975/08/4044_en.pdf.
44 The following nations are signatories of the Helsinki Final Act: Austria, Belgium, Bulgaria, Canada, Cyprus, Czechoslovakia, Denmark, Finland, France, the German Democratic Republic, the Federal Republic of Germany, Greece, the Holy See, Hungary, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Malta, Monaco, the Netherlands, Norway, Poland, Portugal, Romania, San Marino, Spain, Sweden, Switzerland, Turkey, the Soviet Union, the United Kingdom, the United States, and Yugoslavia.
45 For the full text of the Decalogue, see http://www.osce.org/documents/mcs/1975/08/4044_en.pdf.
46 This law also potentially threatens the freedom of religious organizations as well, but because a separate law addresses religious organizations in Russia (Federal Law, “On Freedom of Conscience and on Religious Associations”), this analysis will concentrate on secular nongovernmental organizations.
47 Russia signed the UDHR in 1948. See UDHR section above.
48 Russia signed and ratified in 1950. See http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/EnglishAnglais.pdf.
49 Treaty establishing a Constitution for Europe: http://www.unizar.es/euroconstitucion/library/constitution_29.10.04/part_II_EN.pdf.
50 The European Constitution has been ratified by Austria, Belgium, Cyprus, Estonia, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, Slovakia, Slovenia, and Spain; and vetoed by France and the Netherlands. The Czech Republic, Denmark, Finland, Ireland, Poland, Portugal, Sweden, and the United Kingdom have postponed the ratification process. For more information about the ratification process, see http://www.unizar.es/euroconstitucion/Treaties/Treaty_Const_Rat.htm .
51 For example, see the OSCE Decalogue in previous section.
52 ICNL Analysis at 16.
53 The United States has similar provisions and has restricted citizens’ civil rights only in times of national emergency, such as the internment of Japanese and Japanese-American residents during World War II; even these restrictions were publicly controversial and later declared unconstitutional by the Supreme Court. Ex parte Endo, 323 U.S. 283 (1944) (holding that the detention program was an exercise of unauthorized power by federal officials).
54 The NGO Law’s requirements have the potential similarly to violate other nations’ constitutions and the rights of other foreign donors, but because of the sheer number of American donors who may be affected as well as the ease of accessibility to information about donors’ rights in the United States, this analysis focuses particularly on the United States.
55 See ICNL Analysis at 8.
57 See discussion of United States Constitution, Fourth Amendment, below.
58 Levy and Silber, Nonprofit Fundraising and Consumer Protection: A Donor’s Right to Privacy. Stanford Law and Policy Review.
60 American citizens can potentially belong to Russian NGOs in three ways. First, American citizens domiciled in Russia can belong to Russian NGOs under the NGO Law as long as they are not found “undesirable” by the government. Second, any American citizen may be able to retain “honorary membership” in Russian NGOs (see Analysis of NGO Law, 17). Third, Americans currently participating in Russian NGOs may be allowed to retain their membership, depending on whether the NGO Law applies retroactively, which is currently an open question.
61 357 U.S. 499 (1958).
64 Drivers Privacy Protection Act, 18 U.S.C. § 2721 (2000). See also Reno v. Condon, 528 U.S. 141 (2000). This list of Acts is based on Ely and Silber’s analysis, at 523-34, nn. 12.
65 The Supreme Court invoked the Fourteenth Amendment to protect privacy in prescription drug use. See Whalen v. Roe, 429 U.S. 589 (1977) (requiring states to assure confidentiality when collecting prescription use information in order to comply with the Fourteenth Amendment right to privacy).
66 15 U.S.C. § 1681a (ensuring consumers’ rights to privacy in credit reporting).
67 15 U.S.C. § 1692 (protecting debtors from “invasions of individual privacy”).
68 12 U.S.C. § 3410 (requiring a legitimate inquiry before law enforcement officials can request an individual’s financial documents and a reasonable belief that the documents requested are relevant).
69 43 Am Jur 2d Insurance § 1059 (limiting how health insurance companies can use medical and genetic information about clients).
71 See Schaumberg v. Citizens for a Better Environment, 444 U.S. 620 (1980) (holding that charities and businesses are separate institutions for statutory purposes); but see FTC v. Saja, No. CIV-97-0666-PHX-SMM (holding that an NGO is a business under the FTC Act and could be indicted for fraud) (cited in Levy and Silber, Nonprofit Fundraising and Consumer Protection: A Donor’s Right to Privacy. Stanford Law and Policy Review, 520, 539, 559 (2004)).
72 Associate attorney at King and Spalding New York Office, J.D. Hofstra University School of Law, B.A. New York University.
73 Professor of Law, Hofstra University School of Law.
74Levy and Silber, Nonprofit Fundraising and Consumer Protection: A Donor’s Right to Privacy. Stanford Law and Policy Review, at 520-21.
75 USA PATRIOT Act, Pub. L. No. 107-56, § 1011(b)(1), 115 Stat. 272, 396 (2001).
76 Levy and Silber, Nonprofit Fundraising and Consumer Protection: A Donor’s Right to Privacy. Stanford Law and Policy Review, at 554.
77 The possible remedies are based on the argument posited by Levy and Silber, Id. at 557-65.
79 40 Columbia Journal of Transnational Law 595, 597 (2002) (hereinafter "40 Columbia").
81 40 Columbia 597.
82 28 U.S.C. 1330.
83 FTC Act, 15 U.S.C. 45(a)(2).
84 Levy and Silber, Nonprofit Fundraising and Consumer Protection: A Donor’s Right to Privacy. Stanford Law and Policy Review, at 558.
86 For a comparison of certain NGO regulations in twenty-five European Union Countries, Japan, and the United States, See http://www.cesifo-group.de/portal/page?_pageid=36,34661&_dad=portal&_schema=PORTAL&
87 Dallas v. Stanglin, 490 U.S. 19, 25 (1989).
88 Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984).
89 Katz v. United States, 389 U.S. 347 (1967) (holding that individuals have a right to a reasonable expectation of privacy in government searches).
90 See Levy and Silber, Nonprofit Fundraising and Consumer Protection: A Donor’s Right to Privacy. Stanford Law and Policy Review, at 523-24.
91 Online version at Online Compendium of Federal and State Regulations for U.S. Nonprofit Organizations, http://www.paperglyphs.com/nporegulation/documents/model_npo_corp_act.html.
92 The United States government does, however, retain authority to audit NGOs and summon documents for tax purposes.
93 Subchapter A, Section 6.01.
94 According to the RMNCA, an NGO may also be dissolved pursuant to a judicial finding that the organization was involved in fraud or other criminal activity. See Subchapter C, Section 14.31, Procedure for Judicial Dissolution.
95 See §14.22 Reinstatement Following Administrative Dissolution.
96 The NGO Law also permits dissolution of an NGO for failing to submit documentation. See LNCO, Article 32.
97 See “ U.S. House Urges Russian Deputies to Withdraw NGO Draft,” Associated Press, December 16, 2005. http://www.rferl.org/featuresarticle/2005/12/8cead03a-038d-4d3f-a562-78b5a7d23f6e.html.