Over the course of last week, representatives from Access, Privacy International, the Electronic Frontier Foundation, the Association for Progressive Communications, Reporters Without Borders, the Center for Democracy and Technology, and Human Rights Watch presented the International Principles on the Application of Human Rights to Communications Surveillance on various occasions and at a side event at the 24th session of the United Nations Human Rights Council in Geneva, Switzerland.
The Principles were launched after a panel featuring the High Commissioner on Human Rights Navi Pillay and the UN Special Rapporteur on Freedom of Opinion and Expression Frank La Rue. The Permanent Missions of Austria, Germany, Hungary, Liechtenstein, Norway, and Switzerland hosted the event.
Prior to the launch, the group of civil society members submitted a written statement (A/HRC/24/NGO/31) that is now part of the official record of this session. The Principles provide an evaluative framework for assessing state surveillance in the context of international law and human rights norms. In summary, the Principles are legality, legitimate aim, necessity, adequacy, proportionality, judicial authority, and due process. They also consider user notification, transparency, public oversight, integrity of communications and systems as well as safeguards, both for international cooperation and against illegitimate access.
The Principles are consistent with the views of the highest authorities on human rights and freedom of expression
The Principles come on the heels of recent revelations of dragnet surveillance conducted by several States, news that have prompted the most prominent authorities on human rights to issue statements denouncing these rights-violating practices. High Commissioner Pillay, for example, noted that these actions “raise a number of important international human rights issues which need to be addressed” while UN Special Rapporteur La Rue and his counterpart at the Organization of American States, Catalina Botero, jointly stated that it was “necessary to highlight a series of international legal principles on the issue [of surveillance].” In June, La Rue also submitted a report (A/HRC23/40) on the right to freedom of expression and its relationship to privacy and communications surveillance.
The Human Rights Council has itself recognized through A/HRC/RES/20/8 that people shall enjoy the same rights online as they do offline. At a moment when States are engaging in mass surveillance, a new framework is needed to keep these practices in line with human rights norms and international law. The time is therefore ripe for the Principles, particularly in light of the increase in and changes to communications surveillance technologies.
In his A/HRC/23/40 report, La Rue recommended that to prevent abuses, States evaluate whether their surveillance practices and laws conform to their human rights obligations. La Rue recognized that States have legitimate security concerns, however, he maintained that communications surveillance must only occur under the most exceptional circumstances. These limitations to fundamental rights, his report established, should be guided by certain human rights principles, including the requirement for judicial authorization.
The Principles also reflect the sentiments voiced by a broad coalition of over 300 members of civil society during the 23rd Human Rights Council Session. This statement expressed a “strong concern over recent revelations of surveillance of internet and telephone communications” and recommended that the Human Rights Council convene a special session to examine this issue and to support the development of a new General Comment on Article 17 of the ICCPR. The statement also asked the High Commissioner to prepare a report that formally asks states to report on practices and laws in place on surveillance and what corrective steps will they will take to meet human rights standards, and examines surveillance practices in light of the UN Guiding Principles on Business and Human Rights (A/HRC/RES/17/4).
A history of the Principles
This Principles are an outcome of a global consultation with international experts in communications surveillance law, policy and technology from civil society, industry and elsewhere. The drafting took place over the course of the last year, starting at a meeting with technologists and activists in Brussels, followed by a workshop with Latin American advocates in Rio de Janeiro, and culminating with a series of monthly conference calls between January and May of 2013. The Principles were published for the first time in July on the website www.necessaryandproportionate.org.
Two months and more than 270 institutional signatures later, the Principles are ready to be officially introduced to States. The Principles are founded on international human rights instruments that support the right to privacy and freedom of expression and cite regional human rights jurisprudence like the European Court’s Rotaru v. Romania, as well as national case law like the U.S. Supreme Court’s United States v. Jones. The authors further considered approximately 60 national constitutions during the drafting process.
The Principles’ varied sources reflect the diversity of its supporters which from every continent and from the North to the South, from the East to the West. Their adoption also demonstrates linguistic diversity, having been translated in approximately 30 languages from Vietnamese to German to Quechua.
What is next?
Now that the Principles have been officially launched, the Principles’ campaign coordinators are ready to take them to other spaces and sectors, starting with States at the Human Rights Council and States associated with the Freedom Online Coalition. Members from other sectors like companies, investors, academia, and political parties, are also now encouraged to endorse and use the Principles.