Two sides of the same coin – the right to privacy and freedom of expression
The following is an English version of an article in the September issue of Cuestión de Derechos, written by Privacy International's Head of International Advocacy, Carly Nyst.
The Chinese government installs software that monitors and censors certain anti-government websites. Journalists and human rights defenders from Bahrain to Morocco have their phones tapped and their emails read by security services. Facebook takes down wall posts after States complains of “subversive material”. Google hands over user data to law enforcement authorities that includes IP addresses, location data and records of communications. The US government conducts mass surveillance of foreign phone and internet users.
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.
This point has been made most recently by the UN Special Rapporteur on freedom of opinion and expression, Frank La Rue, in a landmark report to the Human Rights Council in June 2013. The report marks the first time the UN has recognized the impact of State surveillance on free expression and other human rights, and has condemned the latest trends in government surveillance condemned. The report is a timely reminder of the serious implications of surveillance for civil liberties, particularly given that hardly a day passes without news of governments spying on journalists, hacking into emails, or demanding social networks turn over user data. It is clear that this widespread surveillance is not just about gathering information on a citizenry. It’s also about suppressing our ideas and our thoughts, controlling our actions and our words.
Free expression and privacy in the digital age
In the modern world, almost every act online is an act of expression. Participating in an online chat, networking with friends and colleagues, and surfing websites and reading news, downloading files -- these are all acts of imparting or accessing information. In online interactivity, there is content generated and stored, some of which is publicly available, most of which is amongst select individuals and groups. Yet each of these acts also generates transactional information, and can be monitored by unintended parties. In turn, nearly every act of expression is now observable to communications providers, and in turn, the State.
This is without precedent. We could previously communicate with our friends and colleagues without it being known to anyone else. We could move around cities countries and continents and meet with whomever we wished without it being known. We could follow and join groups and movements without having to disclose identities. We could publish and distribute pamphlets, posters, brochures, newspapers and books without knowing the creator, publisher, and reader. The ability to act without being observed was innate to the act of expression so we benefited from privacy as we expressed ourselves by living our personal, political and professional lives. Most importantly, we believed that these were rights worth protecting, enshrining in constitutions and promoting through advocacy and protecting in law.
The protection of free expression is now generally considered a common good. Some States speak out in favour of its protection and admonish those who do not support it in the modern era, and in particular for the internet. No State, however, promotes the right to privacy. Now, when States and human rights mechanisms speak often of promoting free speech and the importance of facilitating access to and use of the internet and new technologies, they rarely admit the implications of new technologies for the right to privacy. They knowingly support free expression in the modern context while ignore the right to privacy that has so long enabled and supported free expression. Put in a more worrying way, they want to see more people communicate and express themselves, particularly in countries where they are at risk for doing so, while turning a blind eye to how they are placing themselves at greater risk of identification, profiling, and persecution for having done so because of the surveillance that is now all too possible and probable.
Instead of enjoying equal promotion to free expression, privacy is often subjected to claims of cultural relativism – the catchphrase “privacy is a Western concept” is regularly lobbed at privacy advocates – or subjugated to concerns of security, development or growth. The right to privacy has not been fully developed by human rights protection mechanisms; the UN Human Rights Committee last issued a General Comment on the right to privacy before most modern technologies – including the internet – were in mainstream usage, and it persists to neglect privacy considerations in its Concluding Observations on the human rights records of State parties. It has rarely recognized the interdependent and mutually reinforcing relationship between privacy and free expression.
This essay begins by elucidating the deprioritisation of the right to privacy in human rights and political discourses. It then goes on to establish the clear links between privacy and free expression, illustrating the interdependent relationship between the two rights by examining State control and surveillance of communications. It concludes by making recommendations for specific State actions to protect and promote the right to privacy, and calls for a stronger statement by UN human rights mechanisms on the mutually reinforcing relationship between the two rights.
Privacy – absent from the agenda
The failure of the international community to develop a stronger statement of the meaning and application of the right to privacy may be in part due to the challenges in defining the content and contours of the right. Although privacy is internationally recognized as a fundamental right, and has its foundations in the constitutions of scores of countries, as diverse as Chile, Ethiopia, and Nepal; in numerous regional and international treaties; and in the jurisprudence of courts across the democratic world, it is far more than a functional legal construct that’s validity derives from its existence in national or international law. Despite its essential role in shielding individuals from government and corporate intrusion into their homes, communications, opinions, beliefs, identities and bodies, it is often claimed that it is an evolving social norm. It does face a changing environment with new forms of data generation, storage, processing and surveillance, and as such it cannot be a static concept; its content and confines are contested, subject to never-ending games of tug-of-war between individuals, governments and corporations. Innovation and change – not just in technologies, but in migration and border flows, security and conflicts, attitudes and priorities – inform and challenge our conceptions of the private and the public. The continual development of new means to undermine or protect privacy gives rise to new discussions about how to contextualise it, and new questions about its salience in changing contexts. “Privacy” may have no fixed meaning or core content; our conceptualisations of privacy are bound to vary across historical periods, cultures and places.
Understanding and protecting privacy is also challenged by the constant evolution of technologies that transform the way we think about the private and public spheres. Technological change alters our relationships and interactions with governments and the corporate sector, and changes how we think about the realization and protection of human rights. This is particularly so when it comes to our communications – how we form and impart our beliefs and opinions. In order to enjoy privacy of communications individuals must be able to exchange information and ideas in a space beyond the reach of the State, the private sector and other members of society. As technologies increase the reach of the State, place power in the hands of the private sector, and create new societies and citizenries online, privacy protections are increasingly crucial.
Of course, the failure to protect and promote the right to privacy is about more than an inability to agree on a definition or conceptualization of the right. Rather, because the right to privacy is the fundamental safeguard of the citizen from the State, it is viewed by the State as a barrier to control, an impediment to power. Privacy is at the heart of the most basic understandings of human dignity – the ability to make autonomous choices about our lives and relationships, without outside interference or intimidation, is central to who we are as human beings. Autonomy is not just about the subjective capacity of an individual to make a decision, but also about having the external social, political and technological conditions that make such a decision possible. Privacy confers those external conditions. As private autonomy is a key component of public life and debate, privacy is not only a social value, but also a public good.
Yet by the State that seeks to control its populace, it is viewed as an impediment, and thus is conceptualized as hampering security, development, and modernization. Individuals are offered simplistic, false choices between competing values: dignity or convenience; freedom or control; our rights and freedoms, or security, modernisation and development. States tell us that stability cannot be ensured if anonymous online expression is unregulated, that communications must be visible by the State in order to prevent terrorism and cyber crime, that interactivity without observability would lead to illegality. All of these are false choices, pitting technology as a means for evil and privacy, the preserve of darker forces in society.
The idea that we must choose between privacy and security has too often pervaded the political and economic discourses, creating false dichotomies and spurring over-simplified arguments about the roles of technologies. The discussion reveals no nuance, no consideration of the values and priorities tied up in privacy and security, no reference to the potentials of technology or the changing nature of threats and security, no indication of the other choices that exist. It has cast security and privacy as competing concepts, rather than interlinking and potentially reinforcing values. Technologies have the potential to diffuse, rather than exacerbate, the privacy/security divide. The challenge is to improve access to and understanding of technologies, ensure that policy makers and the laws they adopt respond to the challenges and potentialities of technologies, and generate greater public debate to ensure that rights and freedoms are negotiated at a societal level.
Privacy and free expression – making the link
Technologies have blurred the line between public and private thought and expression; courts across the globe are confounded by questions about how to characterise social media musings and blogs, how to think about data like location, IP addresses and cookies. Today, more than ever, privacy and free expression are interlinked; an infringement upon one can be both the cause and consequence of an infringement upon the other.
This is particularly so in the case of communications surveillance. The things an individual says to another person, their intimate feelings and opinions, who they have relationships and connections with, what newspapers they read and what movies they watch, where they go and who they talk to: each of these pieces of information are incredibly sensitive and personal. They have long been considered the preserve of an individual’s private life, not for exposure to or infiltration by anyone without consent or without exceptional justification.
Innovations in some technologies have facilitated increased possibilities for communication, and protections of free expression and opinion, enabling anonymity, rapid information sharing, and cross-cultural dialogues. At the same time, changes in technologies have given rise to increased opportunities for State surveillance and intervention into individuals’ private communications. Digital “back doors” are built into mobile telephone networks to enable State surveillance; technologies such as mass interception systems and voice and speech recognition technology enable countrywide surveillance. Social media monitoring tools, deep packet inspection, and trojans are used to monitor individuals online. Data generated by internet companies about internet users’ online activity are accessed by States, who are increasingly mandating the retention of such data.
The range of expression that might be surveilled has also grown. Whereas surveillance was historically aimed at private conversations taking place on the telephone, in the modern era, a vast portion of the expressive power of citizens is channeled through surveilable channels, including not only private one-to-one conversations, but books, magazines, conversations between groups, outlines and finished works, family records, library searches, radio shows, live video and digitized historical cultural artifacts. Modern technology increases access to all of these items and more, at the risk of making all such access knowable by powerful state actors.
When the most confidential and secret parts of an individuals’ life are exposed to the possibility of intrusion, the freedom to express oneself cannot be genuinely enjoyed. Rather, individuals begin to be afraid that their thoughts, words and relationships will be the subject of interception and analysis. Restrictions on the content that individuals can access on the internet thwart their ability to freely impart and receive information and knowledge. Requirements that individuals identify themselves online, or as a prerequisite to access internet or phone services, can result in their de facto exclusion from vital social spheres, undermining their rights to expression and information, and exacerbating social inequalities. Infringements upon private life thus have a chilling effect on free expression, causing individuals to censor their communications and inhibiting their ability and willingness to participate and engage.
The right to seek and receive information is also chilled when the government or the private sector has unchecked access to what information an individual accesses. A visitor to a library, a bookstore, or a newsstand might expect that their choice of reading material will remain private and that they will not be identified or persecuted for their reading matter. When reading matter is delivered over the monitored electronic network, that guarantee can no longer be met. States now potentially have access to all books, websites, newspapers and magazines an individual reads, the movies they watch and the music they listen to.
Infringements upon privacy and free expression also have interrelated impacts on the right to freedom of association and assembly. The monitoring of communications allows the State to know and scrutinise relationships and exchanges that individuals might otherwise want to remain confidential. Surveillance, while impacting individuals’ ability to freely express their opinions, might also impact to whom they are able to express such opinions. Individuals’ abilities to organize are also restricted: where previously membership lists were sometimes mandated in order to intimidate individuals from joining organisations, it is now possible to discern their interests from online activities, location data of their mobile and related internet services, or use of scanning technologies to identify all people within a given physical space, such as a public protest. These activities of registration and identification can now take place without the knowledge or consent of the individuals – a return to covert information gathering on political participation.
Certain groups are particularly vulnerable violations of their rights to free expression, privacy, and information. Because privacy enables individuals to work in a space unhindered by authority, journalists rely on privacy protection in order to receive and pursue information from confidential sources, including whistleblowers. The protection of sources has long been established as a requirement implicit in the right of freedom of expression. An environment where surveillance is widespread, and unlimited by due process or judicial oversight, cannot sustain the presumption of protection of sources. Even a narrow, non-transparent, undocumented, executive use of surveillance may have a chilling effect without careful and public documentation of its use, and known checks and balances to prevent its misuse.
Internet filtering, monitoring, and restrictions on anonymity online severely impede the ability of journalists to conduct research and investigations, and to publish their work to specific or general audiences. Not only do such measures impact upon journalists’ ability to freely express themselves, they also inhibit the important functions that the media plays in maintaining transparency and accountability of the State. Journalists are also particularly vulnerable to becoming targets of communications surveillance because of their reliance on online communications and smartphone devices. This is especially so where journalists are focusing their investigations on political or religious affairs.
Human rights defenders and political activists are also disproportionately subjected to surveillance and censorship. Surveillance of human rights defenders in Colombia, Bahrain, and Algeria has been well documented. In such countries, human rights defenders and political activists report having their every phone call and email monitored, and their movements tracked. Freedom of expression and freedom of information allow human rights defenders to challenge abuses to human rights; without the privacy to conduct investigations and communications away from the prying eyes from the States, this becomes impossible.
Recognition and commitment
It is crucial that States – and the UN human rights mechanisms of which they are members and subjects – recognize the importance of protecting and promoting the right to privacy, both as an essential end in itself, and as a fundamental prerequisite to free expression, thought and information.
The latest report by the UN Special Rapporteur on freedom of opinion and expression drives these conclusions home. The Special Rapporteur emphasizes that “communications surveillance should be regarded as a highly intrusive act that potentially interferes with the rights to freedom of expression and privacy and threatens the foundations of a democratic society”. The Special Rapporteur goes on to make 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.
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.
Any State that is serious about promoting the right to free expression must get serious about promoting the right to privacy. A free and open press is nothing if the journalists writing for the papers are at risk of surveillance; if the individuals who read the online news sources are being tracked and their data recorded. Just as security cannot be used to justify the suppression of minority opinions, so too it must not be used to justify the monitoring, profiling, tracking and general unwarranted interference with our lives, our autonomy, and the development of our personalities.
Privacy is the fundamental barrier that stands in the way of complete State control and domination. Without it, the social contract is broken, and individuals cannot recognize their democratic rights to participate, build, grow and think. A citizenry unable to form or communicate private thoughts without the interference of the State will not only be deprived of their right to privacy, they will be deprived of their human dignity. For the ability to freely think and impart ideas is essential to who we are as human beings.