Kenya, Sweden, Turkey challenged over surveillance practices at UN

The focus on the right to privacy continues at the United Nations, with Kenya, Turkey, and Sweden being recently challenged over their surveillance practices during the Human Rights Council's Universal Periodic Review of States' human rights records.

The explicit mention of the right to privacy in recommendations submitted by Slovenia and the Netherlands during the review of Sweden, in the recommendation by Estonia during Turkey's review, and Liechtenstein's recommendations to Kenya are a welcome development. For the reviews of Kenya, Sweden, and Turkey, Privacy International and our partners submitted stakeholder reports providing evidence-based descriptions on how the right to privacy is being threatened in these countries.

This latest development continues a positive trend at the UN when it comes to privacy. The UN High Commissioner in June 2014 released her report on the right to privacy in the digital age and two resolutions were adopted by the UN General Assembly, in December 2013 and 2014 respectively.

Despite some setbacks, the 21st session of the UPR has brought some hope to privacy advocates. However, progress in other areas stalled. During Egypt's UPR at the end of 2014, privacy and surveillance were not raised in a significant manner. The UN must therefore continue to significantly address how human rights have been negatively impacted by ineffective or inexistent legal frameworks protecting the right to privacy, poor data protection practices, and unlawful and arbitrary surveillance programmes.

The right to privacy at the 21st session of the UPR

During the 21st session of the UPR, held over two weeks at the end of January 2015, Member States and others called on Kenya, Sweden, and Turkey to review their surveillance legislations and practices to ensure that they are in compliance with human rights standards. These concerns echoed calls from the UN General Assembly to review such policies, as well as Privacy International's submissions to the UPR.

Kenya

Over the last few years, the government of Kenya has deployed several surveillance programmes, and expanded the powers and capabilities of intelligence services to conduct surveillance, both online and offline. These trends raise serious concerns about the potential use of surveillance activities by the government to further clamp down on civil society and human rights defenders, especially in the context of the war on terror, which the government has seized on as a legitimising narrative for serious human rights violations.

In addition to the recommendation by Lichtenstein on this issue, other Member States, including Sweden, Switzerland, Czech Republic and Denmark, expressed concerns for the amendments made to the Information Communication Act and the media legislations adopted by the Kenyan government. Member States argued that these amendments were negatively impacting the enjoyment of human rights, and called on Kenya to ensure those reforms and newly adopted laws were reviewed in order to ensure they were in line with Kenya's Constitutional and international human rights obligations.

Lichtenstein specifically called for Kenya to review its national laws and policies in order to ensure that surveillance of digital communications is consistent with its international human rights obligations and is conducted on the basis of a legal framework which is publicly accessible, clear, precise and non-discriminatory.

Sweden

One of the major concerns raised by Privacy International in Sweden's review centred on the powers of Sweden's intelligence agency, the FRA, and its relationship with the NSA and other European intelligence agencies. These alliances raise questions about whether Sweden is in compliance with its own 2008 Intelligence Signals Act, which states that FRA cannot conduct untargeted and arbitrary surveillance, and which does not permit the hacking of devices. We find that the collaboration of the FRA in these programmes is contrary to Sweden's obligations under Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights.

During Sweden's review, the Netherlands directly called on Sweden to prevent interferences with the right to privacy and to implement reforms to comply not only with European law but the International Principles for the Application of Human Rights to Communication Surveillance (an initiaitve that Privacy International spearheaded with EFF and Access, and developed in conjunction with civil society and privacy and technology experts around the world).

Turkey

There are several laws in Turkey which enable the monitoring, surveillance, profiling and persecution of citizens, in particular human rights defenders, political activists and those who have spoken out against the government. Chief among these are the amendments made to Law 5651 (also known as the internet law) in February 2014 which gave extensive powers to the Turkish Telecommunications Authority, and new laws adopted in 2014 which give expansive powers to the intelligence agency and law enforcement.

Reflecting our concerns and that of others, Member States, including Estonia, Canada, Republic of Korea, Spain, Iceland, Czech Republic, recommended that Turkey ensure that internet law and the security legislative package be reviewed to align themselves with Turkey's international human rights obligations.

What next?

The reports have been approved by the Working Group, but the State under review has the opportunity to accept or reject recommendations before the report is approved by the Human Rights Council at its 29th session in June-July 2015. Thus, one first key step will be to see which recommendations these respective governments have welcomed and which they agree will be part of their review process moving forward. This will be an important indication of the reviewed country's commitment to the pressing human rights issues raised by their peers.

Nevertheless, the inclusions of such recommendations in the Working Group's report will now act as a benchmark to re-evaluate the situation in countries being reviewed at 21st UPR; first at the mid-term review in two years, but more importantly at the next review of these countries in 2018.

Privacy International and its global partners will be utilising those recommendations in order to push their advocacy and policy strategies in these respective countries, and to call for reform and, where necessary, the revocation of current laws and bills that violate the right to privacy.

We will now also be looking to other human rights protection mechanisms of the UN to see if they follow this positive development, particularly with respect to the review by the Human Rights Committee of States' implementation of the International Covenant on Civil and Political Rights (ICCPR).

Coming up in July 2015, United Kingdom and Uzbekistan will be reviewed by the Human Rights Committee, and surveillance is expected to take a front-row seat. The committee, during its selection process, has requested additional information on the practices of mass surveillance employed by the GCHQ in the UK and similarly for Uzbekistan.