Today, Access recognizes individuals and groups around the world for their work as it relates to the International Principles on the Application of Human Rights to Communications Surveillance (“the Principles”).
The Principles, endorsed by more than 400 civil society groups worldwide, provide a framework to assess whether government surveillance complies with international human rights obligations. Today marks the one-year anniversary of the Principles, which were publicly released on September 22, 2013. Today’s announcement follows on from the Principles Coalition’s Week of Action last week, which highlighted the Principles and promoted their adoption.
Access recognizes both those who have worked to advance the thirteen principles, as well as those who have taken steps that violate or undermine this rights-protecting framework. Importantly, the below individuals and groups represent only the tip of the iceberg; Selecting only one honoree for each role was difficult, as many qualified individuals were nominated, and deserve recognition for the work they have done over the past year, and in years prior. We are grateful to all of those who work to advance human rights principles.
For their work in 2013-2014, our heroes and villains are:
Overall
Summary: For work that impacts all of the thirteen principles.
Hero: Former UN High Commissioner Navi Pillay
As the UN High Commissioner for Human Rights, Navi Pillay consistently used her position to make clear that surveillance violates fundamental human rights. Recently, in a landmark report titled The Right to Privacy in the Digital Age, High Commissioner Pillay called out governments for “a lack of accountability for arbitrary or unlawful interference in the right to privacy.”
Villain: General Keith Alexander
Former Director of the National Security Agency, Chief of the Central Security Service, and Commander of the United States Cyber Command, General Keith Alexander oversaw the U.S. surveillance programs revealed by Edward Snowden. The programs include PRISM, a number of upstream data collection programs, and others which effectively grant the NSA access to virtually all digital communications globally.
Legality
Summary: Any limitation on the right to privacy must be prescribed by law.
Hero: Ton Siedsma
Ton Siedsma, from the Dutch organisation Bits of Freedom, volunteered to allow a journalist and group of academics track and analyze his phone metadata for a one-week period. The experiment demonstrated how much “just metadata” can reveal about an individual’s personal life and interactions.
Villain: Minister Steven Blaney, Canadian Minister of Public Safety
As the Canadian Minister of Public Health, Mr. Blarney pushed for the passage of a cyberbullying bill. The bill contained many broad surveillance provisions, including one granting authorities access to internet metadata without a warrant, which the Canadian public had rejected in previous legislation.
Legitimate Aim
Summary: Laws should only permit communications surveillance by specified State authorities to achieve a legitimate aim that corresponds to a predominantly important legal interest that is necessary in a democratic society.
Hero: Laila Al-Arian
Ms. Al-Arian produced the documentary “Collect it All: America’s Surveillance State” as part of Al Jazeera’s Fault Lines series. The film highlighted the disparate impact that U.S. surveillance operations have on Arab- and Muslim-American communities.
Villain: President Recep Tayyip Erdo?an
President Erdo?an blocked access across Turkey to popular social media sites Twitter and YouTube, allegedly in an attempt to cover up a corruption scandal.
Necessity
Summary: Laws permitting communications surveillance by the State must limit surveillance to that which is strictly and demonstrably necessary to achieve a Legitimate Aim.
Hero: Jesús Robles Maloof, Luis Fernando Garcia, and Jacobo Najera
As activists working for ContingenteMX and R3D, Mr. Maloof, Mr. Garcia, and Mr. Najera worked tirelessly against Mexico’s Ley Telecom, a bill allowing authorities to track user locations without warrants amongst other rights-abusing provisions. Though the bill passed, their efforts helped in removing provisions that would have permitted network discrimination and the blocking of internet content.
Villain: Emilio Gamboa Patrón
As leader of Mexico’s PRI party, Sen. Patrón shepherded the Ley Telecom through the Congress. Forced to compromise on the text proposed by the Executive, Sen. Gamboa nonetheless supported invasive provisions in the now-passed law, including provisions requiring retention of user data for two years and permitting warrantless tracking. These provisions put users unnecessarily at risk.
Adequacy
Summary: Any instance of communications surveillance authorised by law must be appropriate to fulfill the specific Legitimate Aim identified and effective in doing so.
Hero: Edward Snowden
In June 2013, Mr. Snowden revealed himself to be the previously unknown whistleblower behind leaks involving mass surveillance practices, particularly those of the NSA and GCHQ. The Snowden revelations set off a global debate on proper limits of government surveillance.
Villain: Minister Mohamed Ibrahim Moustafa
In 2014 a leaked document revealed that the Egyptian Interior Ministry, which is overseen by Mr. Moustafa as Interior Minister, was pursuing a mass surveillance plan to monitor communications over social media websites and applications.
Proportionality
Summary: Decisions about communications surveillance must consider the sensitivity of the information accessed and the severity of the infringement on human rights and other competing interests.
Hero: Professor Park Kyung-sin
In 2013, Professor Park, in partnership with South Korea’s PSPD Law Center, won a lawsuit that forced all major telcos to notify the subscribers on-demand whether their identity data has been checked by the police. Previously, Professor Park brought a successful constitutional challenge against South Korea’s mandatory online identity verification law.
Villain: Director of National Intelligence James Clapper
As U.S. Director of National Intelligence, Director Clapper has defended the government’s surveillance programs. He was accused by lawmakers of knowingly misleading the public at a Senate Intelligence Committee Hearing concerning the NSA’s bulk metadata collection program. When asked by Senator Wyden whether the National Security collects any type of data on millions of U.S. persons, Director Clapper responded, “No, sir…not wittingly.”
Competent Judicial Authority
Summary: Determinations related to communications surveillance must be made by a competent judicial authority that is impartial and independent.
Hero: Senator Ron Wyden
Senator Wyden, along with Senators Blumenthal and Udall, introduced two pieces of legislation to substantively reform the U.S. Foreign Intelligence Surveillance Court. Senator Wyden has been a leader in the fight for surveillance reform for many years.
Villain: The Honorable John D. Bates
Judge Bates wrote publicly in opposition to the implementation of a special advocate in the U.S. Foreign Intelligence Surveillance Court. The special advocate has been proposed to offer a dissenting viewpoint and to provide for a more adversarial process in otherwise secret surveillance court proceedings.
Due Process
Summary: States must respect and guarantee individuals’ human rights by ensuring that lawful procedures that govern any interference with human rights are properly enumerated in law, consistently practiced, and available to the general public.
Hero: President Dilma Rousseff
In September 2013, President Rousseff addressed to the UN General Assembly, openly condemning a “global network of electronic espionage.” She not only led the charge to protect digital rights on the international level, but she also signed Brazil’s Marco Civil legislation, creating a bill of rights for Brazil’s internet.
Villain: Minister Abdallah-Kadre Assane
As Minister of Planning, Economy, and International Cooperation, Mr. Assane ordered four Central African Republic telecoms to shutdown SMS service for the entire country. The order came in the midst of public demonstrations against the transitional government.
User Notification
Summary: Individuals should be notified of a decision authorising Communications Surveillance with enough time and information to enable them to challenge the decision or seek other remedies and should have access to the materials presented in support of the application for authorization.
Hero: Ladar Levison
Mr. Levison, the founder of secure email site Lavabit, shut down his service rather than comply with a court order to facilitate government surveillance. He has been vocally opposed to the gag order that prevented him from discussing specifics of the case.
Villain: AT&T
Evocative of AT&T’s willing participation in the warrantless wiretapping program revealed in 2005, an accident of open government law administration revealed in 2013 that AT&T gives federal government agents access to twenty-six years of call data through a program called Hemisphere. The data are not limited to AT&T customers.
Transparency
Summary: States should be transparent about the use and scope of Communications Surveillance laws, regulations, activities, powers, or authorities.
Hero: Doctor Christopher Parsons
Doctor Parsons has actively pushed Canada’s leading Telecommunications Services Providers to disclose how, why, and how often they provide subscriber information to state agencies. Based on their responses, Dr. Parsons offered comprehensive recommendations on how companies could improve public transparency.
Villain: Secretary Jeremy Heywood
Under the authority of UK Prime Minister David Cameron, Mr. Heywood ordered the Guardian to destroy documents regarding surveillance activities of the NSA and GCHQ. The hard drives were “pulverized” in the basement of the newspaper’s London offices. Notably, the Guardian has stated that all documents related to its reporting on these matters are stored in other offices.
Public Oversight
Summary: States should establish independent oversight mechanisms to ensure transparency and accountability of Communications Surveillance.
Hero: Claude Moraes, MEP
Mr. Moraes served as the Special Rapporteur for the European Parliament Inquiry into the Mass Surveillance of EU Citizens. The European Parliament supported Mr. Moraes’ resolution advancing stronger whistleblower protections and calling for greater protections for EU citizens.
Villain: Major General Pisit Paoin
As Head of the Thailand’s junta appointed working group overseeing internet censorship, Major General Pisit Paoin initiated a plan for the Thai Royal Police to infiltrate internet chat groups. The Thai government warned that even ‘liking’ anti-junta content online could lead to criminal charges.
Integrity of Communications and Systems
Summary: States should not compel service providers, or hardware or software vendors to build surveillance or monitoring capabilities into their systems, or to collect or retain particular information purely for State Communications Surveillance purposes.
Hero: Nighat Dad
The Executive Director of Digital Rights Foundation Pakistan, Ms. Dad, in partnership with Shirkat Gah and Bolobhi, sponsored a day-long digital security training on the importance of secure communications. The training, which took place in Lahore, targeted populations most susceptible to surveillance, including journalists, bloggers, writers, human rights defenders, and students.
Villain: Deputy Prime Minister Debretsion Gebremichael
Under his tenure, it was revealed that Ethiopia had purchased and used Finfisher surveillance software in what was dubbed “an elusive espionage campaign.” Despite the facts, Mr. Gebremichael, who is the Ethiopian Minister of Communication and Information Technology, has denied knowledge of the specific software and dodged further questions.
Safeguards for International Cooperation
Summary: Mutual Legal Assistance Treaties (MLATs) entered into by States should ensure that, where the laws of more than one State could apply to Communications Surveillance, the available standard with the higher level of protection for individuals should apply.
Hero: Reform Government Surveillance Coalition
Among its 5 guiding principles, The Reform Government Surveillance Coalition, which includes many of the major internet firms, explicitly called for the improvement of the MLAT processes to support inter-government cooperation. The Coalition also sent a letter to the U.S. Senate urging the passage of a strong USA FREEDOM Act.
Villain: President Vladimir Putin
President Putin signed a Russian data localization law that requires all internet companies, even those without a presence in Russia, to store Russian personal data on servers within the country. The bill was later amended requiring localization in a nearly impossible time frame, according to experts.
Safeguards Against Illegitimate Access and Right to Effective Remedy
Summary: States should enact legislation criminalising illegal Communications Surveillance by public and private actors.
Hero: Viviane Reding, MEP
In her former role as Vice President and European Commissioner for Justice, Fundamental Rights, and Citizenship, Ms. Reding was a vocal proponent for EU citizens to gain the right to judicial redress in the United States through an EU-US umbrella agreement on Data Protection. She is currently serving as an MEP from Luxembourg.
Villain: Harold Koh
Despite a career largely supporting civil liberties, Mr. Koh, a former Legal Advisor at the U.S. Department of State, authored the recently revealed memorandum providing the basis for the U.S.’ interpretation of extraterritoriality in rights under the ICCPR. In a 2013 memo, Koh stood behind his reasoning, which, contrary to well-accepted international law and practice, fails to recognize any rights for those non-US Persons subject to surveillance outside of the United States.
For more information on the Principles and the Week of Action, please visit the Coalition webpage.