For the second straight year, the United Nations has declared that government communications surveillance poses a threat to the right to privacy.
Passed unanimously on Tuesday by the Third Committee, which covers human rights, the resolution on “The right to privacy in the digital age” recounts the privacy violations enabled by advances in technology, overbearing government surveillance, corporate complicity, and the need for legal reforms.
Beyond keeping up momentum, this resolution includes a kicker — a call for a permanent office on the right to privacy. For that to happen, though, the Human Rights Council in Geneva will have to take action in March by creating a new “special rapporteur” on the right to privacy. If so, in 2015, the world will have its first independent authority examining and promoting the right to privacy with the power to admonish governments for violations.
In response to mass surveillance revelations in 2013, including news that their political leaders had been spied on, Brazil and Germany co-authored a unanimous resolution in the General Assembly on privacy for the first time last year.
The resolution called for a report by the High Commissioner for Human Rights, Navi Pillay, who answered with a scathing critique in July 2014 that cited the need for immediate reform of surveillance laws and practices in line with international human rights norms. The report’s finding that mass surveillance inherently violates human rights spoke directly to the “five eyes” countries – the US, Canada, the UK, New Zealand, and Australia – who are responsible for weakening technical standards, collecting untold reams of data, and thwarting public debate over their practices.
Brazil and Germany again teamed up to lead this year’s effort, gathering more than 60 cosponsors. The resolution finds that surveillance must be “consistent with international human rights obligations and must be conducted on the basis of a legal framework, which must be publicly accessible, clear, precise, comprehensive and non-discriminatory.” It smartly calls for greater access to remedy for victims — a too-often ignored pillar of rights frameworks — and for increased attention to the role of private companies in government surveillance. In oral statements, the US and its allies in the “Five Eyes” drew attention to the resolution’s acknowledgment of “threats and harassment” that human rights defenders face along with privacy violations.
Importantly, near its conclusion, the resolution invites the Human Rights Council to “consider the possibility of establishing a special procedure” regarding the promotion and protection of the right to privacy.
Special procedures: what is a Special Rapporteur?
As the primary UN body dealing with human rights, the Human Rights Council alone can create “special procedures,” the expert mechanisms that put certain rights or governments under a microscope. The common form is a “Special Rapporteur,” an individual expert charged with undertaking a host of activities, such as country visits and interventions, annual reports, pursuing clearer definitions and greater enforcement of a certain right (thematic focus), or documenting abuses by specific governments (country focus).
These procedures can create a body of expertise by undertaking long-term, consistent, and broadly informed investigations into specific rights or countries. In short, exactly what a complex right like privacy needs at the moment.
Despite the best efforts of the co-sponsors Brazil and Germany, and the strong call for action at the Council, however, this year’s resolution falls short on several counts.
The resolution rightly expresses concern about “extraterritorial surveillance and/or interception of communications,” but does not specifically call for governments to extend protections to users abroad. Governments like the United States surveil foreigners under FISA Section 702 and Executive Order 12333 with limited to no restrictions. But in an era of global communications, safeguards on the right to privacy online quickly become meaningless when tied to terrestrial borders. Although expressing concern is important, governments must do much more to provide an effective solution to cross-border violations.
Additionally, the resolution’s terms use language adopted by states decades ago in the treaties that form the basis of international human rights law. For instance, the resolution calls for restrictions on privacy to be non-arbitrary and lawful, the language from the International Covenant on Civil and Political Rights. In doing so, the UN Third Committee overlooked findings by multiple courts and international experts more precisely defining how privacy rights should be handled – specifically, that surveillance and other privacy restrictions should only be prescribed by law, necessary to achieve a legitimate aim, and proportionate to the aim pursued. These concepts are further articulated in the International Principles on the Application of Human Rights to Communications Surveillance, which High Commissioner Pillay said in her report can be considered interpretive guidance of Article 17 of the ICCPR that establishes the right to privacy.
While the resolution notes that metadata can, when aggregated, “reveal personal information and can give an insight into an individual’s behaviour, social relationships, private preferences and identity,” it stops short of calling for an end to bulk metadata collection by governments, which the Human Rights Council has an opportunity to push for in March.
Overall: Not bad
Summarizing, we think that this resolution represents a step in the right direction for the protection of privacy in the digital world, despite the shortcomings we mentioned. Those could be properly addressed by a strong commitment from governments and human rights bodies in subsequent developments expected for next year.
Access will continue working with partners to ensure the Human Rights Council follows through on the General Assembly’s suggestion, and creates the long-term, expert Special Rapporteur’s office that the right to privacy requires and deserves.