UN Special Rapporteur report on mass surveillance: much to like, some to debate

The United Nations Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, Ben Emmerson, released a report on October 15 critiquing mass surveillance of digital communications. Examining surveillance through the lens of state obligations under the International Covenant on Civil and Political Rights (ICCPR), the Special Rapporteur’s report takes issue with the lack of authorizing surveillance legislation, the failure to respect the human rights of those located outside national boundaries, and the need for surveillance to be governed by principles of proportionality, necessity, oversight, judicial authorization, and transparency.

Mass surveillance, Emmerson declared, “amounts to a systematic interference with the right to respect for the privacy of communications…”

The report addresses the well-known bulk surveillance programs operated by the U.S. and UK. One troublesome bulk program highlighted by the Special Rapporteur’s report is Tempora, operated by GCHQ, the UK intelligence agency. The program collects metadata and content as it travels across the fiber optic cables between the UK and U.S., whether or not the subject of surveillance is suspected of wrongdoing. In addition to Tempora, the Special Rapporteur’s report addresses Prism and Upstream, similar programs operated by the U.S. Other programs the report does not detail include New Zealand’s Government Communications Security Bureau new metadata program. There, surveillance occurred even as government officials guaranteed there would be no mass surveillance. In Ethiopia, authorities have nearly unlimited access to call and email content. For many, those records have been the impetus for extralegal threats and violence.

Human Rights and Communications Surveillance

Article 17 of the ICCPR firmly enshrines the right to privacy in international law. The right is reinforced through regional and national frameworks. Article 17 of the ICCPR protects against “the arbitrary or unlawful interference” with privacy. The UN, independent commentators, and courts have interpreted the language of Article 17 to determine the scope of permissible limitations. One effort to clarify those standards as they apply to communications surveillance is the International Principles on the Application of Human Rights to Communications Surveillance (“the Principles”). The Principles have received support from more than 400 civil society groups. The former UN High Commissioner for Human Rights, Navi Pillay, stated in her landmark report, “The Right to Privacy in the Digital Age” that the Principles can be considered interpretive guidance of Article 17.

Many of the concepts of the Principles are addressed by the Special Rapporteur’s report. The The Principle of Legality is found in his call for the “clarity and precision” of domestic legislation to provide notice of the application of surveillance laws. He also called for the least intrusive means of surveillance, reflecting the Necessity Principle.

On the Principle of Transparency, the Special Rapporteur’s Report agrees that the populations subject to surveillance should have access to the information necessary to understand the scope and scale of surveillance. Only through transparency is the public able to meaningfully participate in debates on and decisions about the proper limits of state surveillance. In the U.K., a secret policy permitting surveillance of Facebook searches was only made public after rights groups challenged U.K. law in court. According to Special Rapporteur Emmerson, “nothing short of detailed and explicit authorization in primary legislation suffices to meet the principle of legality.”

Additionally, Special Rapporteur Emmerson also positively alluded to the Principles of Competent Judicial Authority, Due Process, Public Oversight, and Safeguards for International Cooperation throughout his report.

The Special Rapporteur’s Report, in many ways, echoes the reform calls that Access and others have made to bring surveillance in line with human rights. However, when discussing Proportionality, Special Rapporteur Emmerson leaves open the possibility that bulk surveillance may be justified. While recognizing that bulk surveillance “is incompatible with existing concepts of privacy,” and “indiscriminately corrosive of online privacy,” the Special Rapporteur hedges: “the threat of terrorism can provide a justification for mass surveillance only if the States using the technology can demonstrate with particularity the tangible counter-terrorism advantages shown to have accrued from its use.”

Access disagrees that mass surveillance is ever justified. Beyond the near-total sacrifice of privacy, mass surveillance also has a chilling effect on the rights to free expression and assembly. Noting that mass surveillance will have a drastic impact on a number of rights, its use should be considered disproportionate in all cases. Previous Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Frank La Rue, released a report addressing the impact of surveillance on expression, in which he said, “Communications surveillance should be regarded as a highly intrusive act that potentially interferes with the rights to freedom of expression and privacy and threatens the foundations of a democratic society.”

Growing international consensus

The Emmerson’s Report adds to the growing body of international and regional institutions rejecting mass surveillance. Echoing themes in Pillay’s report earlier this year, Emmerson called out the lack of human rights protections in surveillance programs, including the lack of extraterritorial protections for those living outside borders. In of the report’s most damning passages, Emmerson writes: “States are legally obliged to afford the same privacy protection for nationals and non-nationals and for those within and outside their jurisdiction. Asymmetrical privacy protection regimes are a clear violation of the requirements of the Covenant.”

The extraterritorial application of the ICCPR has been a critical issue in the surveillance debate. The U.S. government’s consistent position has been that its human rights obligations don’t apply to non-U.S. persons outside the U.S. But the UN body charged with interpreting the ICCPR, the Human Rights Committee, has taken the position—one strongly reaffirmed in the Special Rapporteur’s Report—that obligations extend extraterritorially. And Emmerson’s position is not only that the U.S. has obligations to respect the right to privacy beyond its border, but that states must afford the “same” privacy protections to non-citizens. That would mean a drastic change in policy for the U.S., which has gone so far as to collect all cell phone calls in the Bahamas.

Special Rapporteur Emmerson also takes on possibly the largest hurdle to user challenges to surveillance laws: standing. In the U.S., a policy may be in contradiction to legislation or to the Constitution. However, because users can only challenge laws once they show particularized injury, even illegal laws can linger unchallenged. The Electronic Frontier Foundation attempted to challenge U.S. bulk surveillance in Jewel v. NSA, yet, the case stalled due to a lack of proof that the plaintiff was actually under surveillance. Only after the Snowden revelations has the case moved ahead. The Special Rapporteur has called for standing for any internet user subject to mass surveillance to challenge the surveillance’s “legality, proportionality, and necessity”.

The report also addresses other pressing privacy issues. Earlier this year, the Court of Justice of the European Union struck down the Data Retention Directive that required all telecommunications data to be stored for at least six months. As noted in the Special Rapporteur’s report, data retention laws require the service provider store data even though the government has no suspicion that many of the users committed any crime. Again, such practices are inherently disproportionate.

The path ahead

Global efforts to address the human rights impact of surveillance remain strong, though more work is needed to put an end to bulk collection. Access supports continued efforts by the UN, where the General Assembly’s Third Committee (Social, Humanitarian, and Cultural) continues its work on the right to privacy in the digital age with a resolution forthcoming likely later this year. We also support Special Rapporteur Emmerson’s call for a new General Comment on privacy in which the Human Rights Committee would provide official interpretation of Article 17. The last such General Comment came out in 1988, when communications technology, particularly surveillance technology, was drastically different.

In the U.S., Access is pushing for the passage of the USA FREEDOM Act, which would put an end to at least some bulk collection under the Patriot Act. The UK Parliament has undertaken an open review of surveillance laws (see our submission here), with a report likely in 2015. Meanwhile, the European Court of Human Rights and domestic courts in the U.S. are hearing cases addressing bulk surveillance. Moving forward, Access urges all states to adopt, comply, and implement the International Principles on the Application of Human Rights to Communications Surveillance.