The revelations of mass government surveillance and pervasive monitoring of communications that broke earlier this year have led to an erosion of trust among internet users. So much so that organizations responsible for coordination of the internet’s technical infrastructure globally were compelled to release the Montevideo Statement on the “Future of Internet Cooperation.”
While the drafters of the Montevideo statement may have had in mind technical or institutional solutions, trust in communications is also a human rights issue, deeply embedded in the fundamental right to privacy. After all, generally speaking, users have not lost trust that their emails will reach their intended recipient; they have lost trust that their right to privacy is being violated with every email sent, with every stroke of the key.
Therefore, on Human Rights Day, the 65th anniversary of the adoption of the Universal Declaration of Human Rights, it seems appropriate to explore what the United Nations is doing to uphold the UDHR’s commitment that “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence” in light of unimaginable advances in communications technology since 1948. This blog post will focus primarily on activity at the U.N. General Assembly, Human Rights Council, Internet Governance Forum, and review process of the World Summit on Information Society. We will also suggest additional approaches, for example, through the Human Rights Committee.
UNGA: Advancing the Right to Privacy in the Digital Age
Late last month, the U.N. General Assembly took a critical first step in addressing mass surveillance as a human rights violation with the passage of a resolution recognizing the right to privacy in the digital age. The resolution was adopted at the committee level and is expected to pass by the full General Assembly next week.
Adopted by consensus with over 50 co-sponsors, the resolution signals growing international agreement that “unlawful or arbitrary surveillance, interception of communications, and collection of personal data are highly intrusive acts that violate the rights to privacy and freedom of expression, and may contradict the tenets of a democratic society.” In addition to specific requests it made to governments to uphold the right to privacy in the digital age, the resolution importantly requests the U.N. High Commissioner for Human Rights to prepare a report on the protection and promotion of the right to privacy in the context of domestic and extraterritorial surveillance and/or interception of digital communications and collection of personal data.
The High Commissioner’s report will likely be the basis for future action on privacy and surveillance at the UN. The report will be debated at the Human Rights Council’s 27th session next September, at which point Council members may pass a resolution suggesting next steps. It will also be presented at next year’s General Assembly for further action. Depending on what the report says, governments action could range from “welcoming” or “acknowledging” the report and its findings to launching a process for a new international treaty on online privacy. The good news is that Brazil and Germany, the countries leading on this issue in the General Assembly, have announced that they intend to launch “a thorough, open follow up in Geneva” next year and seem open to civil society input.
HRC: Surveillance a hot button issue
Edward Snowden’s revelations first hit while the U.N. Human Rights Council was in the middle of its 23rd session. As it happens, the Council was already considering the issue because UN Special Rapporteur on Freedom of Opinion and Expression, Frank La Rue was presenting his annual report (A/HRC/23/40) to the HRC, which explored the impact of mass state surveillance on human rights. The report warned that human rights standards have fallen behind rapid advances in surveillance technology and argued that states have an obligation to “revise national laws regulating [surveillance] in line with human rights standards.”
Additionally, the Association for Progressive Communications (APC) delivered a joint statement on behalf of over 300 individuals and organizations from civil society, including Access, at HRC23 expressing strong concern over the surveillance revelations, which “suggest a blatant and systematic disregard for human rights” and calling for next steps by the HRC, including convening a special session on the issue, supporting the recommendation that the Human Rights Committee develop a new General Comment on the right to privacy in light of technological advancement, and requesting a report from the High Commissioner on surveillance and human rights.
Surveillance and privacy remained on the HRC’s agenda at its 24th session in September. A number of governments expressed outrage at the “unjustified, unauthorized, or even criminal” surveillance regimes of states. Germany, Brazil, and Pakistan were particularly vocal on the issue.
A number of NGOs were active during HRC24, highlighting the impact of state surveillance on privacy and other human rights. Representatives from Access, Privacy International, the Electronic Frontier Foundation, APC, Reporters Without Borders, and Human Rights Watch launched the International Principles on the Application of Human Rights to Communications Surveillance at a side event at HRC24, which featured the High Commissioner on Human Rights Navi Pillay and Special Rapporteur Frank La Rue. The Principles, which Access helped develop, explain how international human rights law applies in the current digital environment, particularly in light of the increase in use of and changes to communications surveillance technologies and techniques. As indicated in the previous session, with the High Commissioner’s report expected next year, the issue is likely to stay on the HRC’s agenda.
Many of the same organizations submitted a joint statement (A/HRC/24/NGO/31) at HRC24 highlighting the need to bring state surveillance frameworks in line with international human rights norms, as outlined by the Principles.
This is the first part of a two part post. Read the second part here.