Update: The resolution on “The Right to Privacy in the Digital Age” was adopted by the full U.N. General Assembly by consensus on December 18, 2013.
Today the U.N. General Assembly took a critical first step in addressing mass surveillance as a human rights violation with the passage of a resolution recognizing the right to privacy in the digital age.
While it is unfortunate that an earlier draft of the resolution was watered down in negotiations, the fact that it was adopted by consensus with over 50 co-sponsors signals growing international agreement that unlawful or arbitrary surveillance, interception of communications, and collection of personal data are highly intrusive acts that violate the rights to privacy and freedom of expression, and may contradict the tenets of a democratic society.
Affirming the right to privacy in the digital age
The resolution, introduced by Brazil and Germany in General Assembly’s Third Committee, is a positive development in many respects: it reaffirms a strong commitment to foundational international human rights instruments, including the International Covenant on Civil and Political Rights (ICCPR), as well as important recent documents like U.N. Special Rapporteur Frank La Rue’s report (A/HRC/23/40) on the right to freedom of expression and communications surveillance.
The text includes an important reference to the extraterritorial impact of surveillance and/or interception of communications, which makes it difficult for the U.S. and its Five Eyes partners to claim that their human rights responsibilities stop at their borders. It also marks the first time that the General Assembly enequivocally states that the same rights people have offline must also be protected online.
More specifically with this resolution, States are called upon to make the following four commitments: (1) respect and protect the right to privacy in the context of digital communications; (2) take specific measures to put an end to violations of those rights; (3) review their laws and practices regarding surveillance to ensure that they meet their human rights obligations under international law; (4) establish or maintain effective oversight mechanisms that hold States accountable for their surveillance operations.
Importantly, the resolution requests the U.N. High Commissioner for Human Rights to prepare a report on the protection and promotion of the right to privacy in the context of domestic and extraterritorial surveillance and/or interception of digital communications and collection of personal data.
The cost of consensus
But arriving at a consensus text came at a cost. Colum Lynch reported that there were intense negotiations late last week during which “American representatives made it clear that they won’t tolerate such checks on their global surveillance network.” And the compromise text was weaker in a few regards.
For example, an earlier draft recognized “that the exercise of the right to privacy is an essential requirement for the realization of the right to freedom of expression” [emphasis ours], but in the text that was adopted the language was changed from “essential” to “important.” As La Rue has well articulated, privacy and free speech are integral to one another since the deprivation of the former creates an immediate chilling effect on the latter.
Additionally, the initial text expressed deep concern over the “human rights violations and abuses” that may result from the conduct of any surveillance of communications, whereas the adopted text characterized surveillance as having a “negative impact”. And while we welcome the resolution’s request for a report by the High Commissioner, some language regarding the scope of that report, concerning principles, standards, and best practices, was lost.
Finally, it is very unfortunate that although the resolution does affirm “that the same rights that people have offline must also be protected online” it does not reference the Human Rights Council’s landmark resolution on the promotion, protection and enjoyment of human rights on the internet (A/HRC/RES/20/8) which first advanced this norm at the U.N. in the context of free expression, and was adopted by consensus with over 80 co-sponsors in 2012. Resolution 20/8 was not included in either version of the text that was tabled.
Politics at play
In traditional U.N. fashion, governments made statements around the adoption of the resolution, revealing their motivation for supporting the text or clarifying their understanding of it. For example in introducing the text, Germany asserted that the resolution aimed at addressing two questions: Is the right to privacy still effectively protected in our digital age? and, Should everything that is technically feasible be allowed? According to Germany, the resolution provides much needed guidance in finding answers to these quesitons.
Brazil, also a co-sponsor of the resolution, characterized the text as stemming from Brazilian President Dilma Rousseff’s powerful speech at the opening of the General Assembly, during which she outlined principles for a civilian framework for governance of the internet, first of which was ensuring freedom of expression, privacy of the individual and respect for human rights. Brazil also noted the joint letter from Access, Amnesty International, the Electronic Frontier Foundation, Human Rights Watch, and Privacy International sent to U.N. missions last week urging states to adopt a text that upholds the right of all individuals to use information technology without fear of unwarranted interference.
North Korea took the opportunity to clarify that it views the resolution as concerning massive electronic surveillance by one country, the U.S., on the whole world, and not about what a country does within its own borders, even though the resolution does condemn domestic surveillance. Sweden and Canada both emphasized the importance of freedom of expression in the context of surveillance and highlighted that HRC resolution 20/8 should have been referenced in this context.
The U.S., whose surveillance programs sparked the international backlash that prompted this resolution, reaffirmed its support for the international human rights instruments, clarifying its “understanding this resolution [is] to be focused on State action and consistent with longstanding U.S. views regarding the ICCPR, including Articles 2, 17, and 19”. Their longstanding view on Article 2 is that the ICCPR “would apply only to individuals who were both within the territory of a State Party and within that State Party’s jurisdiction”. In other words, the U.S. does not view States as having extraterritorial obligations, irrespective of an authoritative interpretation by the U.N. Human Rights Committee which suggests that “a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.”
The U.S. also clarified its position with regards to the relationship between the rights of freedom of expression and privacy, saying “In some cases, conduct that violates privacy rights may also seriously impede or even prevent the exercise of freedom of expression, but conduct that violates privacy rights does not violate the right to freedom of expression in every case.”
Time for a more inclusive approach
The intergovernmental set up of the General Assembly is very much at odds with the open, bottom up mechanisms through which discussions of internet policy typically take place. This is not to say however that governments, don’t have a role. They do, and protecting the rights of citizens is the responsibility of governments in the digital age.
But moving forward, it is critical that delegations and the U.N. itself invite experts, from civil society, the technical community, academia, and beyond–both at the domestic and international level–to input into resolutions and the High Commissioner’s report. Germany announced today that together with Brazil, it would be launching “a thorough, open follow up in Geneva inviting the active participation of all interested delegations”. That follow up should be open to all interested stakeholders, including experts who can provide meaningful feedback and recommendations for the nuanced and complicated topic of communications surveillance.
What happens next – Take Action!
Today’s development is just the start. The next step is for the resolution to be adopted in the full General Assembly, which is expected to happen sometime next month.
In order to keep the pressure on decision-makers (at the U.N. and elsewhere), Access and other organizations from around the globe are launching an Action Center for any individual to sign on to the International Principles on the Application of Human Rights to Communications Surveillance. While the resolution expresses its concern about the impact of communications surveillance, the Principles give specific guidance on the obligations of governments for the preservation and protection of human rights in the context of the digital sphere.
The Necessary and Proportionate Principles provide a highly relevant framework for the High Commissioner’s report mandated by this resolution, as they articulate how the existing international human rights framework, including the right to privacy, should be interpreted in light of technology changes. The Principles provide standards in the context of domestic and extraterritorial surveillance.
Access would like to express appreciation to the Association for Progressive Communications for providing us with accreditation to the U.N. in NY, allowing us to follow this important debate.