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UN report: The link between State surveillance and freedom of expression

In a landmark report, the United Nations today has broken its long-held silence about the threat that State surveillance poses to the enjoyment of the right to privacy.

The report is clear: State surveillance of communications is ubiquitous, and such surveillance severely undermines citizens’ ability to enjoy a private life, freely express themselves and enjoy their other fundamental human rights. Presented today at the UN Human Rights Council session in Geneva, the report marks the first time the UN has emphasised the centrality of the right to privacy to democratic principles and the free flow of speech and ideas.

Issued by the UN Special Rapporteur on the freedom of opinion and expression, the report breaks a tradition long-held by UN human rights mechanisms to remain relatively silent on State surveillance. The last clear statement by a UN body about the oppressive effects of State surveillance came in 2009 when the UN Special Rapporteur on counter-terrorism, Martin Scheinin, raised concerns about the growing tide of surveillance modalities adopted by States in the aftermath of 9/11, and called on the UN to take action to update its understandings of the right to privacy in the face of the internet and new technologies.

Since that time, legal safeguards have been rolled back, new technologies have been adopted and surveillance techniques have proliferated. Today, the Special Rapporteur reports, “the State now has a greater capability to conduct simultaneous, invasive, targeted and broad-scale surveillance than ever before.”

Advancements in Surveillance

The report begins by describing the evolution of surveillance technologies, noting that as the means by, and frequency with which people are able to communicate has expanded and evolved, so too have the means by which States sought to monitor private communications. Modern surveillance technologies and arrangements enable States to intrude into an individual’s private life, threatening to blur the divide between the private and the public spheres. Individuals are no longer able to even know that they have been subjected to such surveillance, let alone challenge it.

Further, technological advancements mean that the State’s effectiveness in conducting surveillance is no longer limited by scale or duration. Declining costs of technology and data storage have eradicated financial or practical disincentives to conducting surveillance.

The Special Rapporteur goes on to outline different types of targeted and mass communications surveillance techniques employed by States, including the use of IMSI catchers, offensive intrusion software, including trojans, and deep-packet inspection technologies. Access to communications data held by third party services provides another common modality of surveillance, remarks the report.

“As the private sector collects progressively larger amounts of varied data that reveal sensitive information about peoples’ daily lives, and individuals and businesses choose to store the content of their communications, such as voicemails, e-mails and documents, with third party service providers, access to communications data is an increasingly valuable surveillance technique employed by States.”

With the proliferation of mandatory data retention laws across the globe, States now have a treasure trove of data to filter and analyse. Advances in surveillance technology and techniques are particularly concerning given the global trend towards deteriorating legal safeguards, notes the report. The Special Rapporteur observes that generally, legislation has not kept pace with the changes in technology, creating gaps that deprive individuals of protection and allow for the extra-legal use of surveillance.

The requirement that surveillance requires judicial authorization is being dispensed with in many States, which are also rolling back requirements that law enforcement agencies return to the court for ongoing supervision of surveillance activities. Vague and unspecified notions of “national security” have become an acceptable justification for the interception of and access to communications in many countries. States are accessing communications data held by third parties in a situation where there is no regulation or oversight of the practice.

The report also notes a number of other legal trends related to surveillance: in some States legislation is being adopted that purports to authorize extra-territorial surveillance or interception of communications in foreign jurisdictions. Mandatory data retention laws requiring Internet and telecom service providers to continuously collect and preserve communications content and information about users’ online activities proliferate. Laws requiring the provision of identification at cybercafés and the use of real names online abound.

Each of these acts threatens both an individual’s freedom to express themselves, and their right to maintain a private life and private communications. In this way, privacy and free expression are two sides of the same coin, each an essential prerequisite to the enjoyment of the other. To freely form and impart ones political, religious or ethnical beliefs one needs an autonomous, private space free from interference, from the State, private sector or other citizens. Equally, infringements on the right to privacy – physical or online surveillance, monitoring of communications or activities, State intrusion into private, family or home affairs – prevent an individual from exercising their freedom expression.

The role of the private sector

Importantly, the report recognizes the vital role of the private sector, in both the advancement of communications technology as well as facilitators of, or at worst complicit in, State surveillance. Innovations and research by the private sector undoubtedly have contributed greatly to how we communicate. What the report cautions, however, is the nature of the relationship between the state and corporations when it comes to surveillance.

Since the 1990s, governments have increasingly sought to require communication technologies and digital networks to allow for easy access to communications data, ie backdoors. The private sector not only interfaces with the State to deal with these requests, but how they store and process data, making them huge repositories of personal information available to the state at virtually any time, according to the report.

But the greatest danger, the report cautions, is the global industry that has developed around the sale of invasive and mass surveillance technologies to governments. The industry, the report highlights, remains virtually unregulated and often operates outside of existing legal standards. Repressive regimes are commonly the buyers of the technology, making it more likely that the products being sold and serviced by private companies will be used to carry out human right abuses. The report calls on governments to “ensure that the private sector is able to carry out its functions independently in a manner that promotes individuals’ human rights”. At the same time, the report states that corporations “cannot be allowed to participate in activities that infringe upon human rights, and States have a responsibility to hold companies accountable in this regard.”

Recommendations and the road ahead

The Special Rapporteur concludes the report by making a number of recommendations to States, including the following:

  • Communications surveillance must be regulated by legal frameworks, must be strictly and demonstrably necessary to achieve a legitimate aim, and must be subject to the principle of proportionality;
  • Illegal surveillance by public or private actors should be criminalized;
  • The provision of communications data by the private sector to the State should be sufficiently regulated and monitored by an independent authority;
  • Anonymity online should not be outlawed, nor should encryption;
  • Measures must be taken to prevent the commercialization of surveillance technology, considering their ability to facilitate human rights abuses.

With each new piece of technology, a dangerous cat-and-mouse game emerges – increased connectivity also leads to a greater chance of a breach of confidentiality. That is why the Special Rapporteur calls upon the UN human rights mechanisms to update their conceptualisations of the right to privacy in the context of new technologies.

Without this, existing protections will not just become outdated. Rather, inaction to reconceptualise how our privacy is protected will leave the door wide open for States to abuse new technology, violating our rights in the process, all because those with the power to do so refused to act.