Surveillance: A Potential ‘Chilling Effect’ on Human Rights?

Readers will recall the flurry of media commentary last summer regarding the revelations, courtesy of Edward Snowden, that the U.S. National Security Agency had engaged in electronic surveillance of both the German Chancellor and the Brazilian President.

Among the steps taken in protest by the governments of these two states was the introduction of a resolution at the fall session of the UN General Assembly entitled “The right to privacy in the digital age.” After some diplomatic massaging to reduce the sting in its contents, the resolution was adopted without a vote, first in the Third (Human Rights) Committee and then by the General Assembly as a whole.

Brazil and Germany could have introduced the original resolution into the General Assembly’s First Committee dealing with International Security, however the sponsors opted to present their resolution in the context of international human rights law. Treating the offending action as a violation of a human right, namely the right to privacy, was judged to be a stronger basis for multilateral action than complaining about being victimized by an act of cyber espionage (especially one carried out by a close ally).

The resolution expressed deep concern over the negative impact that surveillance could have on human rights, and reaffirmed the right to privacy, “according to which no one shall be subjected to arbitrary or unlawful interference with his or her privacy” as set out in Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights. The resolution reminded states of their obligation “to respect and protect the right to privacy, including in the context of digital communication.”

Operationally, the most significant feature of the resolution was its tasking of the UN High Commissioner for Human Rights to prepare a report on the whole issue to be submitted to the September 2014 sessions of the UN Human Rights Council and the General Assembly.

That report is now in and it makes engaging reading for all those concerned with the right to privacy and the role of states in supporting (or undermining) it. The report, although only of an advisory nature, will likely be cited in future discussions, at the national and international levels, of the scope of the right to privacy in cyberspace.

It will also serve as a spring board for debate in the UN context as member states grapple with the implications of its recommendations for the development of ‘norms for responsible state behaviour in cyberspace’ a frequently voiced, but elusive goal of the international community.

The report’s introduction notes how technological advances have removed financial and practical obstacles to undertaking wide-ranging and sustained electronic surveillance: “The State now has a greater capability to conduct simultaneous, invasive, targeted and broad-scale surveillance than ever before.” It suggests that these newly expanded capabilities have led to infringement of the right to privacy and other fundamental rights.

Although the report acknowledges the argument that electronic surveillance can be an effective measure for legitimate law enforcement or intelligence purposes, it counters that the nature of digital mass surveillance has raised questions as to whether “such measures are consistent with international legal standards and whether stronger surveillance safeguards are needed to protect against violations of human rights.” It also notes that human rights bodies have ruled that electronic correspondence must be protected from interference to the same extent as other forms of correspondence.

Further, it disputes the contention that the collection of so-called ‘metadata’ is not an interference with privacy and argues as well that “even the mere possibility of communications information being captured creates an interference with privacy, with a potential chilling effect on rights, including those to free expression and association.”

A considerable section of the report is devoted to a legal discussion of when interference is judged to be “arbitrary” or “unlawful.” Principles of necessity and proportionality figure prominently in this analysis with the report arguing that the extent of interference must be assessed against the necessity of the measure and its actual benefit in realizing the purported objective.

Furthermore, the carrying out of any interference must be based on laws that are publicly accessible and sufficiently precise as to the criteria to govern such action. Secret ordinances or internal polices that provide for excessive discretion do not meet the standards of “law” for the purposes of authorizing interference with the right to privacy. In this connection the report also warns against the “emerging practice of States to outsource surveillance tasks to others,” whereby jurisdictions with weaker safeguards for privacy are utilized to undertake certain surveillance work.

The report also laments the “lack of governmental transparency associated with surveillance policies, laws, and practices, which hinders any effort to assess their coherence with international human rights law and to ensure accountability.”

The need for effective procedural safeguards is a principal finding of the report and a practical condition for achieving the protection of the law for the right to privacy. In surveying developments the report concludes, “a lack of effective oversight has contributed to a lack of accountability for arbitrary or unlawful intrusions on the right to privacy in the digital environment.”

The creation of an independent civilian oversight agency is recommended with the report suggesting that a mixed model, combining administrative, judicial and parliamentary oversight may yield the best results. Ensuring the right of victims to an effective remedy is also a crucial component of any oversight regime.

The report of the High Commissioner for Human Rights is a laudable, substantive contribution to the erupting debate over the right to privacy and the scope of state action.

Beyond informing multilateral discussion at this fall’s UN General Assembly, the report’s findings should be of interest to politicians and civil society representatives concerned with national laws and practices as they pertain to the right to privacy in the digital age.

Canadians, as citizens and “netizens”, need to be more engaged with these issues both in their domestic and international contexts.