The right to privacy in the digital age

A review of the recently published report from the United Nations High Commissioner for Human Rights on the right to privacy in the digital age

Caméra de vidéo-surveillance by  Frédéric BISSON (flickr)

Two days ago, 16 July, the United Nations (UN) High Commissioner for Human Rights, Ms. Navi Pillay, published a report on a study conducted by her office which “revealed a ‘disturbing’ lack of transparency about governmental surveillance policies and practices, ‘including de facto coercion of private sector companies to provide sweeping access to information and data relating to private individuals without the latter’s knowledge or consent’” (Source: Office of the High Commissioner for Human Rights (OHCHR)). The report titled, The right to privacy in the digital age, was requested by the UN General Assembly, following the unanimous approval of the Resolution 68/187 – The right to privacy in the digital age.

Resolution 68/167

Passed in December 2013, Resolution 68/167 essentially reaffirmed and extended the right to privacy persons have offline, online. Though the General Assembly noted the concern about the need for public/national security measures, it emphasised that unlawful, arbitrary or mass scale surveillance, or interception of communications, were highly intrusive and violated “the rights to privacy and to freedom of expression and may contradict the tenets of a democratic society” (Source: UN).

In addition to calling for countries to respect and protect the right to privacy both offline and online, the Resolution asked them to:

…take measures to put an end to violations of those rights and to create the conditions to prevent such violations…

…review their procedures, practices and legislation regarding the surveillance of communications, their interception and the collection of personal data, including mass surveillance, interception and collection, with a view to upholding the right to privacy…

…establish or maintain existing independent, effective domestic oversight mechanisms capable of ensuring transparency, as appropriate…  (Source: UN).

Select findings from OHCHR’s report

The OHCHR’s report is surprisingly current and insightful, and could be considered an authoritative guide for a broad range of issues that have emerged over the past several months with regard to surveillance programmes that countries worldwide have executed. Below is a cross section of topical issues that the OHCHR addressed, and the responding opinions expressed.

Greater legal controls are needed to oversee digital mass surveillance

The report addresses the alleged mass surveillance activities that have been conducted by some countries. Of particular note have been the reports of activities conducted by the United States National Security Agency (NSA) within the United States (US), in Brazil and even in the Bahamas, in the Caribbean. The OHCHR suggested that greater oversight and controls may be required to ensure persons’ human rights are not violated:

Revelations about digital mass surveillance have, however, raised questions around the extent to which such measures are consistent with international legal standards and whether stronger surveillance safeguards are needed to protect against violations of human rights. Specifically, surveillance measures must not arbitrarily or unlawfully interfere with an individual’s privacy, family, home or correspondence.  (Source: UN)

The collection or interception of metadata violates the right to privacy.

Revelations that the NSA was collecting metadata from the calls of US citizens caused a huge uproar last year, as experts were of the view that it still provided enough context for the interceptor to know some of the most intimate details of a person’s life (Source: Electronic Frontier Foundation). In the report, the OHCHR affirmed that position:

…it has been suggested that the interception or collection of data about a communication, as opposed to the content of the communication, does not on its own constitute an interference with privacy. From the perspective of the right to privacy, this distinction is not persuasive. The aggregation of information commonly referred to as “metadata” may give an insight into an individual’s behaviour, social relationships, private preferences and identity that go beyond even that conveyed by accessing the content of a private communication.  (Source: UN)

Mass surveillance programmes tend to be arbitrary

The main argument made by countries that conduct mass surveillance activities is that it helps them to ferret out a broad range of threats from then currently unknown sources. The OHCHR addressed this matter directly stressing the need for those activities not to be arbitrary, and to be the appropriately targeted, if they must be implemented:

Mass or “bulk” surveillance programmes may thus be deemed to be arbitrary, even if they serve a legitimate aim and have been adopted on the basis of an accessible legal regime. In other words, it will not be enough that the measures are targeted to find certain needles in a haystack; the proper measure is the impact of the measures on the haystack, relative to the harm threatened; namely, whether the measure is necessary and proportionate.  (Source: UN)

Mandatory data retention, just in case it is needed in the future, is unnecessary and disproportionate

One of the revelations by NSA whistle-blower, Edward Snowden, in June 2013, was that the US Government was storing the data it collected and intercepted indefinitely, in the event it is needed in the future. The OHCHR does not support that approach, particularly when it involved third parties:

Mandatory third-party data retention – a recurring feature of surveillance regimes in many States, where Governments require telephone companies and Internet service providers to store metadata about their customers’ communications and location for subsequent law enforcement and intelligence agency access – appears neither necessary nor proportionate.  (Source: UN)

Countries ought not to be relying on secret laws to support their communications surveillance programmes

Finally, in a recent interview with Edward Snowden several weeks ago, he revealed that in the US, there are secret laws and courts – not those publicly available to all citizens – that address matters that are considered “top secret”. The OHCHR expressed the view that a government’s surveillance activities ought to be guided by publicly accessible law:

Paragraph 2 of article 17 of the International Covenant on Civil and Political Rights explicitly states that everyone has the right to the protection of the law against unlawful or arbitrary interference with their privacy. This implies that any communications surveillance programme must be conducted on the basis of a publicly accessible law, which in turn must comply with the State’s own constitutional regime and international human rights law.22 “Accessibility” requires not only that the law is published, but that it is sufficiently precise to enable the affected person to regulate his or her conduct, with foresight of the consequences that a given action may entail.   (Source: UN)


Image credit: Frédéric BISSON (flickr)