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Brazil, Germany introduce resolution on Right to Privacy in the Digital Age at UN General Assembly

2:41pm | 1 November 2013 | by Deborah Brown, Fabiola Carrion

This blog has been updated from its initial publication of 1 November 2013.

The United Nations is the site of the latest diplomatic response to revelation of mass surveillance by the United States and its allies. Today at the General Assembly, Brazil and Germany formally introduced their draft resolution on “The Right to Privacy in the Digital Age.” The text of the draft resolution deals directly with the recently exposed practice of mass surveillance, expressing a deep concern for the:

“human rights violations and abuses that may result from the conduct of any surveillance of communications, including extraterritorial surveillance of communications, their interception, as well as the collection of personal data, in particular massive surveillance, interception and data collection”

The text draws significantly from the report (A/HRC/23/40) of Special Rapporteur on the Right to Freedom of Opinion and Expression, Frank La Rue, issued earlier this year, as well as Human Rights Council resolutions 20/8 on “The promotion, protection and enjoyment of human rights on the Internet” and 12/16 on “Freedom of opinion and expression.”

The draft resolution calls on Member States to:

(a) To respect and protect the rights referred to in paragraph 1 above [namely privacy], including in the context of digital communication (new, based on OP5a of A/HRC/RES/12/16);

(b) To take measures to put an end to violations of these rights and to create the conditions to prevent such violations, including by ensuring that relevant national legislation complies with their obligations under international human rights law (new, based on OP5b of A/HRC/RES/12/16 and on the report A/HRC/23/40 (para 64) of the Special Rapporteur);

(c) To review their procedures, practices and legislation regarding the surveillance of communications, their interception and collection of personal data, including massive surveillance, interception and collection, with a view to upholding the right to privacy and ensuring the full and effective implementation of all their obligations under international human rights law (based on the report A/HRC/23/40 (paras 64) of the Special Rapporteur);

(d) To establish independent national oversight mechanisms capable to ensuring transparency and accountability of State surveillance of communications, their interception and collection of personal data (based on the report A/HRC/23/40 (para 93) of the Special Rapporteur);

It also requests the U.N. High Commissioner for Human Rights “to present an interim report on the protection of the right to privacy in the context of domestic and extraterritorial, including massive, surveillance of communications, their interception and collection of personal data” next year at the General Assembly, and a final report by 2015. The report should provide “views and recommendations” to be considered by Member States, with the purpose of:

“identifying and clarifying principles, standards and best practices on how to address security concerns in a manner consistent with States’ obligations under international human rights law and in full respect for human rights, in particular with respect to surveillance of digital communications and the use of other intelligence technologies that may violate the human right to privacy, freedom of expression and of opinion”

Negotiations on the text are set to begin next week at the General Assembly’s ‘Third Committee on Social, Humanitarian, Cultural Affairs,’ and are expected be put to the full General Assembly in late November. The current text demonstrates improved changes from a previous, leaked draftFor example, the old version only referred to the dangers of extraterritorial surveillance, failing to mention the privacy violations perpetrated by nations against their own citizens. This new version also broadens protections to all communications, not just those the government deems private. Better terminology is also used, protection against "decryption" has been replaced with "interception" in PP4 and PP8. These revisions, nevertheless, missed the opportunity to highlight one of the most important lessons we learned from Edward Snowden's leaks: that communications metadata can be highly revealing, sometimes more so than the actual content of communication, and is being acquired in bulk with inadequate due process by intelligence agencies. Although it is not perfect, the draft resolution is welcomed as the first initiative in many years where the UN General Assembly addresses the right to privacy, especially important in light of recent changes in technology. 

Other bodies at the UN have raised the issue of mass surveillance this year. In September, the issue of online surveillance was debated in Geneva at the 24th session of the U.N. Human Rights Council. Participating Member States engaged in a robust debate at the plenary session, while civil society launched its own International Principles on the Application of Human Rights to Communications Surveillance at an HRC24 side event and submitted an official statement calling on States to ensure that advances in technology do not lead to disproportionate increases in States' interference with the private lives of individuals. Since their launch, the Principles have been endorsed by more than 280 organizations from around the world, and have appeared in UNESCO documents, the new Mexican telecom reform bill, and cited by policy makers in Sweden and the United Kingdom.

Germany and Brazil have been leading diplomatic efforts on surveillance issues in recent months, amid widespread international outrage at revelations of the U.S. National Security Agency's mass surveillance programs. 

ensuring that advances in technology do not lead to disproportionate 
increases in the State’s capacity to interfere with the private lives of individuals.  amid widespread international outrage at revelations of the U.S. National Security Agency’s mass surveillance programs.

In September, Brazilian President Dilma Rousseff delivered a powerful speech at the opening of the 68th Session of the annual U.N. General Assembly, strongly condemning U.S. surveillance and calling for the establishment of an "international civilian framework" that protects human rights, including the the privacy, online. Last month, Rousseff announced Brazil would host a world summit on internet governance in the spring of 2014.

In Europe, Germany has been the most vocal of the E.U. Member States in its reaction to the U.S. surveillance programs. The country has led the push to enshrine the right to privacy online in international law, calling for the development of a new Optional Protocol to the International Covenant on Civil and Political Rights. However, the country’s outrage may be more muted going forward: reports in today’s Guardian implicate Germany as one of the nations working closely with British spy agency GCHQ on mass surveillance.

 

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