UN Special Rapporteur report on protecting privacy while countering terrorism
The UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism published his report on privacy and anti-terrorism powers. PI staff members advised the Special Rapporteur on this project.
The report identifies the policy trends around the world, the extraneous powers sought by some governments, the use and banning of technologies to enhance surveillance, and the abuses that have arisen.
The Special Rapporteur makes the following recommendations.
RECOMMENDATIONS FOR LEGISLATIVE ASSEMBLIES
60. The Special Rapporteur recommends again that any interference with the right to privacy, family, home or correspondence should be authorized by provisions of law that are publicly accessible, particularly precise and proportionate to the security threat, and offer effective guarantees against abuse. States should ensure that the competent authorities apply less intrusive investigation methods if such methods enable a terrorist offence to be detected, prevented or prosecuted with adequate effectiveness. Decision- making authority should be structured so that the greater the invasion of privacy, the higher the level of authorization needed.
61. Adherence to international standards for privacy and human rights protection must be a tenet national law. Accordingly, a comprehensive data protection and privacy law is necessary to ensure that there are clear legal protections for individuals to prevent the excessive collection of personal information, that ensures measures are in place to ensure the accuracy of information, that creates limits on the use, storage, and sharing of the information, and which mandates that individuals are notified of how their information is used and that they have a right to access and redress, regardless of nationality and jurisdiction.
62. Strong independent oversight mandates must be established to review policies and practices, in order to ensure that there is strong oversight of the use of intrusive surveillance techniques and the processing of personal information. Therefore, theremust be no secret surveillance system that is not under the review of an effective oversight body and all interferences must be authorized through an independent body.
63. All current and proposed counter-terrorism policies must include privacy impact assessments to review and communicate how the policy and technologies ensure that privacy risks are mitigated and privacy is considered at the earliest stages of policymaking.
64. The Special Rapporteur recommends that stronger safeguards be developed to ensure that the sharing of information between governments continues to protect the privacy of individuals.
65. The Special Rapporteur also recommends that stronger regulations are developed to limit Government access to information held by third parties, including reporting schemes, and to minimizes the burden placed on third parties to collect additional information, and that constitutional and legal safeguards apply when third parties are acting on behalf of the State.
66. The Special Rapporteur warns that legislative language should be reconsidered to prevent the use of anti-terrorism powers for other purposes. New systems must be designed with a limitation of scope in the specifications.
67. The Special Rapporteur urges Governments to articulate in detail how their surveillance policies uphold the principles of proportionality and necessity, in accordance with international human rights standards, and what measures have been taken to ensure against abuse.
68. The Special Rapporteur recommends open discussion and regular reporting on information-based surveillance programmes. Reports to legislative and oversight bodies, as well as independent reviews of practices will help inform future policymaking and deliberation on anti-terrorism policy.
69. Any watch list- or profile-based surveillance programme must include due process safeguards for all individuals, including rights to redress. The principle of transparency must be upheld so that individuals can be informed as to why and how they were added to watch lists or how their profile was developed, and of the mechanisms for appeal without undue burdens.
70. Given the inherent dangers of data mining, the Special Rapporteur recommends that any information-based counter-terrorism programme should be subjected to robust and independent oversight. The Special Rapporteur also recommends against the development and use of data-mining techniques for counter-terrorism purposes.
71. In light of the risk of abuse of surveillance technologies, the Special Rapporteur recommends that equal amounts of research and development resources be devoted to privacy-enhancing technologies.
FOR THE HUMAN RIGHTS COUNCIL
72. The Special Rapporteur recommends the development of a programme for global capacity-building on privacy protection. The international replication of anti-terrorism laws and the global standards on surveillance must be counterbalanced with greater awareness of the necessary safeguards for the protection of individuals’ dignity.
73. The Special Rapporteur urges the Human Rights Council to establish a process that builds on existing principles of data protection to recommend measures for the creation of a global declaration on data protection and data privacy.
FOR THE HUMAN RIGHTS COMMITTEE
74. The Special Rapporteur recommends that the Human Rights Committee begins drafting a new general comment on article 17 of the International Covenant on Civil and Political Rights, with the goal of elaborating a proper limitation test, thereby providing guidance to States on appropriate safeguards. The general comment should also give due attention to data protection as an attribute of the right to privacy, as enshrined in article 17 of the Covenant.