UN publishes report on surveillance and freedom of expression

Jeff Landale contributed to this post.

A newly released UN report warns that human rights standards have fallen behind rapid advances in surveillance technology, arguing that states have an obligation to “revise national laws regulating [surveillance] in line with human rights standards.” If the report is approved by the UN Human Rights Council, states may well be obligated to make those changes.

The report was authored by the UN Special Rapporteur on Freedom of Expression Frank La Rue, whose previous UN report declaring access to the internet as a fundamental human right greatly bolstered the cause of digital rights advocates around the globe. It comes after an eventful year in technology-enabled state surveillance, including the recent $2.8 million fine for Computerlinks AG by US Department of Commerce for the sale western surveillance tech to Syria.

We’ve witnessed the steady rise of government surveillance across the globe through detailed data disclosures in company transparency reports, such as those by Google and Microsoft, and smaller companies like Leaseweb. The new UN report urges states to limit these intrusions, by strengthening laws and legal standards governing surveillance, removing barriers to anonymity online, and regulating the commercialization of surveillance technology.

Because it mentions the United States’ Foreign Intelligence Surveillance Act (FISA) as part of an “alarming trend towards the extension of surveillance powers beyond territorial borders,” the US delegation before the Human Rights Council only gave a partial endorsement of the report, threatening the Human Rights Council’s endorsement.

Surveillance tech outstrips legal restraints

The development of communications and surveillance technologies has outstripped the existing framework for limiting government intrusion into users’ private communications. Modes of surveillance unimaginable decades ago have become technologically and financially possible, yet the laws governing surveillance remain antiquated.

“By placing taps on the fibreoptic cables, through which the majority of digital communication information flows, and applying word, voice and speech recognition, States can achieve almost complete control of tele- and online communications,” wrote La Rue in the report.

Such surveillance technology threatens human rights advocates, political dissidents, and members of the press in an age when they depend on online anonymity to protect themselves. As such, the report recommends that these States refrain from demanding user identification to access communications, as doing so both endangers people and limits their ability to enjoy freedom of expression and privacy, while the report’s statement on the need for journalists to “be able to rely on the privacy, security and anonymity of their communications” while working to expose corruption has added weight in the wake of the US scandal on government surveillance of the Associated Press.

From documentation to implementation

The Rapporteur’s Report comes on the eve of the publication of a list of principles crafted by members of the civil society, with the input from industry and international experts in communications surveillance law, policy, and technology. Like the Report, “The Principles on the Application of Human Rights to Communications Surveillance” describe the values that underlie a rights-respecting communications surveillance law and are founded on existing international human rights laws.

The Rapporteur’s report, along with the newly drafted Principles, provide an international legal foundation that demonstrate that communications surveillance may be conducted while respecting fundamental rights. Access will soon be releasing our guidance on implementation of these principles, outlining specific steps to guide legal professionals working on monitoring communications surveillance practices in the different branches of the governments, civil society, and the private sector.