16 July 2014
Good morning, and thank you all for attending.
As you know, my Office – and more broadly, the United Nations – has been deeply concerned about the implications of digital surveillance practices by Governments, and their damaging impact on human rights, including the right to privacy.
Digital communications are vulnerable to electronic surveillance and interception – and it has become evident that new technologies are being developed covertly to facilitate these practices, with chilling efficiency.
International human rights law provides a clear and universal framework for the promotion and protection of the right to privacy, including in the context of domestic and extraterritorial surveillance, the interception of digital communications and the collection of personal data.
Practices in many States have, however, revealed a lack of adequate national legislation and/or enforcement, weak procedural safeguards, and ineffective oversight. All of these have contributed to a lack of accountability for arbitrary or unlawful interference in the right to privacy.
Invasive surveillance and the collection and storage of personal data arising from digital communication – whether this is targeted surveillance or massive in scope – may not only infringe on the right to privacy, but also on a range of other vital human rights. These include the rights to freedom of opinion and expression, and to seek, receive and impart information, as well as to freedom of peaceful assembly and association.
Surveillance is not an abstract phenomenon. It can result in damaging or even lethal actions. In some States, people identified as dissidents by digital surveillance have been targeted for further investigations – and in several cases, credible allegations indicate that they have been tortured or otherwise abused.
Governments reportedly have threatened to cancel the services of telecommunication and wireless equipment companies unless given direct access to communications. They have allegedly tapped fibre-optic cables for surveillance purposes, and required companies systematically to disclose bulk information on customers and employees.
Some Governments have also allegedly operated a transnational network of intelligence agencies through interlocking legal loopholes, effectively evading the protections provided by their domestic laws.
In this technological era, people are increasingly reliant on digital media in their political, economic and social lives. It is fundamental that the human rights they hold offline should also be protected online.
Today my Office is publishing a report that builds on expert consultations and in-depth research that examined existing national and international legislation and jurisprudence, together with a compilation of information from a broad range of sources. These include responses to a questionnaire that was sent to States; international and regional organisations; national human rights institutions; non-governmental organisations; and private sector entities.
Building on the framework of international law, the report offers a series of recommendations for stronger safeguards governing surveillance, in order to protect against violations of human rights.
The report makes it clear that in a large number of States, national legislation and oversight of digital surveillance programs are inadequate. This contributes to a lack of accountability for arbitrary or unlawful interference with the right to privacy.
Secret rules and secret interpretations of the law – even if issued by judges – are not compatible with the principle that laws should be clear and accessible. Careful and highly attentive oversight is, in such cases, absolutely vital. And as our report states, any surveillance of digital communications must be monitored and supervised by completely independent institutions.
When conducted in compliance with the law – including international human rights law – surveillance of electronic communications data can, of course, be an effective and necessary measure for legitimate law enforcement or intelligence purposes. However, among other restrictions, States must demonstrate the necessity of that surveillance, and they may only take measures that are proportionate and in compliance with legislation that is clear, precise and accessible.
The very existence of a mass surveillance programme creates an interference with privacy. The onus is on the State to demonstrate that such interference is neither arbitrary nor unlawful.
Mandatory third-party data retention is a recurring feature of surveillance regimes in many States, where Governments require telephone companies and Internet service providers to store metadata about all their customers’ communications and locations for subsequent access by law enforcement and intelligence agencies. This appears neither necessary nor proportionate.
Similarly, surveillance of people based only on their race, religion or national origin does not comply with international legal norms. International human rights law is explicit on the principle of non-discrimination and this applies to the right to privacy as to all other rights. The International Covenant on Civil and Political Rights requires that “the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
Article 17 of the International Covenant on Civil and Political Rights states that “no one shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.” The Covenant, a binding treaty ratified by 167 States, also says that “everyone has the right to the protection of the law against such interference or attacks.”
In other words, there is universal recognition of the fundamental importance, and enduring relevance, of the right to privacy. States have an obligation to ensure that it is safeguarded, in law and in practice. They also have a legal obligation to provide remedies. Effective remedies for violations of privacy through digital surveillance come in a variety of judicial, legislative or administrative forms. First and foremost, they must be known and accessible to anyone with an arguable claim that their rights have been violated.
But the best remedy of all is to establish strong legal protections to ensure that such violations do not happen in the first place.