Drew Mitnick contributed to this post.
The 2013 Freedom Online Coalition Conference in Tunis was attended by Access’ Policy Director, Jochai Ben-Avie, Tech Director, Gustaf Bjorksten, and Tunis Shift Lead, Al Walid Chennoufi.
The Freedom Online Coalition (FOC), a group of 21 governments committed to collaborating to advance internet freedom, convened in Tunis, Tunisia for their third annual meeting of governments, businesses, and civil society. While the conference had several programmatic tracks, recent revelations of sweeping state surveillance took center stage, including civil society’s statement at the closing plenary (below) which pointed to a series of principles that should underlie communications surveillance policies and practices.
Sami Ben Gharbia of Nawaat, a Tunisian civil society collective, presented the statement expressing the sense of many of the civil society members at the conference. The statement begins by calling on the FOC to commit to reviewing their policies and practices to ensure that the human rights of all users — not just their own citizens — are protected; to ensure that all laws, regulations, and legal interpretations are accessible and foreseeable to the public; to make transparent in the scope and nature of surveillance requests; and to improve understanding within governments of the impacts of surveillance on digital freedom.
To take these commitments forward, the statement further “urge[d] FOC members to adopt, comply with, and implement the International Principles on the Application of Human Rights to Communications Surveillance published in June, 7, 2013 by civil society groups active in the FOC.”
Crafted by a diverse coalition of legal experts, industry, and civil society organizations, including Access, EFF, and Privacy International, the Principles provide all stakeholders with a framework to evaluate whether current or proposed surveillance laws and practices are consistent with the international human rights framework. A summary of the Principles is included in the statement below.
Rights violations and chilling effects of surveillance
The recently revealed surveillance programs violate international human rights, including Article 17 of the International Covenant on Civil and Political Rights (ICCPR), which states that “[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence . . . Everyone has the right to the protection of the law against such interference or attacks.”
Providing further authoritative legal interpretation, the UN Human Rights Committee stipulated in General Comment No. 16 that the ICCPR’s Article 17 charges the State with the positive duty to protect citizens against unlawful and arbitrary interference. Given that all FOC members are party to the ICCPR, their respective surveillance policies and practices must be assessed in the context of this obligation.
While there have already been extensive discussions on whether the surveillance programs in the US, the UK, and elsewhere are legal, constitutional, and compliant with human rights laws, the Principles can be a valuable tool in this process. The civil society statement ends by identifying the “FOC as a platform for constructive multistakeholder global debate on these issues” and states that we “look forward to working with the FOC to take substantive steps to advance the goals above and report back on progress made at the IGF in Bali and the 2014 Freedom Online Conference in Tallinn.” But as Rebecca MacKinnon said in the ending to her keynote address, “we must start immediately. Winter is coming.”
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THIS IS A CALL TO GOVERNMENTS FROM CIVIL SOCIETY. THIS CALL WAS PRESENTED DURING THE CLOSING CEREMONY OF THE FREEDOM ONLINE CONFERENCE THAT TOOK PLACE IN TUNIS BETWEEN JUNE 17-18, 2013. THIS CALL CAPTURES THE “SENSE OF THE ROOM” AT THE JUSTICE TENT THAT WAS ORGANIZED AT NAWAAT ON JUNE 17TH, 2013*:
- In the light of recent events a number of civil society organisations participating in this Coalition meeting, call on governments who are members of the Freedom Online Coalition (FOC) to commit to the following:
- Recognize that they are responsible for protecting the human rights of all people online, not just those of their own citizens. FOC members should review their policies and practices to ensure that they adhere to this principle.
- Render any law, regulation, or legal interpretation related to monitoring and surveillance of online communications and connection accessible and foreseeable to the public. Secret law is not law.
- Make transparent the scope and nature of requests to service providers related to surveillance of online communications, and not prohibit public disclosure to users by these service providers.
- Improve understanding within national governments on the implications of surveillance for digital freedoms and the relations of trust between states and citizens.
The explosion of digital communications content and information about communications, or “communications metadata,” the falling cost of storing and mining large sets of data, and the provision of personal content through third party service providers make State surveillance possible at an unprecedented scale. Broad collection of such information not only has a chilling effect on free expression and association; it threatens confidence in the internet as a safe platform for personal communications. It is therefore incumbent upon FOC members to extend and defend fundamental rights in ways that respond to this changing environment.
In taking this commitment forward, we urge FOC members to adopt, comply with, and implement the International Principles on the Application of Human Rights to Communications Surveillance published in June, 7, 2013 by civil society groups active in the FOC. These principles address the following:
– Legality: Any limitation on the right to privacy must be prescribed by law.
– Legitimate Aim: Laws should only permit communications surveillance by specified State authorities to achieve a legitimate aim that corresponds to a predominantly important legal interest that is necessary in a democratic society.
– Necessity: Laws permitting communications surveillance by the State must limit surveillance to that which is strictly and demonstrably necessary to achieve a legitimate aim.
– Adequacy: Any instance of communications surveillance authorized by law must be appropriate to fulfill the specific legitimate aim identified.
– Proportionality: Decisions about communications surveillance must be made by weighing the benefit sought to be achieved against the harm that would be caused to the users’ rights and to other competing interests.
– Transparency: States should be transparent about the use and scope of communications surveillance techniques and powers.
– Public oversight: States should establish independent oversight mechanisms to ensure transparency and accountability of communications surveillance.
– Integrity of communications and systems: States should not compel service providers, or hardware or software vendors to build surveillance or monitoring capabilities into their systems, or to collect or retain information.
– Safeguards for international cooperation: Mutual Legal Assistance Treaties (MLATs) entered into by States should ensure that, where the laws of more than one State could apply to communications surveillance, the available standard with the higher level of protection for users should apply.
– Safeguards against illegitimate access: States should enact legislation criminalizing illegal communications surveillance by public and private actors.
Widespread, untargeted surveillence and data collection is not consistent with these principles.
For the full text of the Principles, please visit http://www.necessaryandproportionate.net/.
These principles, the concept of privacy by design, and the international human rights framework should also be applied to the technical architecture of communications and surveillance systems, ensuring that technological and policy protections are developed in parallel.
We see the FOC as a platform for constructive multistakeholder global debate on these issues and look forward to working with the FOC to take substantive steps to advance the goals above and report back on progress made at the IGF in Bali and the 2014 Freedom Online Conference in Tallinn.
Tunis, 19 June, 2013