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Human Rights Council holds panel discussion on the right to privacy in the digital age

Human Rights Council 

12 September 2014

The Human Rights Council this morning held a panel discussion on the right to privacy in the digital age.

Flavia Pansieri, Deputy High Commissioner for Human Rights, in an opening statement said that for millions the digital age had opened the door to emancipation and had been perhaps the greatest liberation movement the world had ever known.  Still, those digital platforms were vulnerable to surveillance, interception and data collection and deep concerns had been expressed as policies and practices that exploited this vulnerability had been exposed around the globe.

The panelists were Marko Milanovic, Associate Professor, Nottingham University and Panel Moderator; Catalina Botero Marino, Special Rapporteur on freedom of expression, Inter-American Commission on Human Rights; Sarah Cleveland, Professor, Columbia Law School; Yves Nissim, Deputy Chief CSR officer at Orange, former Chair of the Telecommunications Industry Dialogue; Carly Nyst, Legal Director, Privacy International.

Mr. Milanovic said that this topic was one of the most important in modern human rights law.  Modern technologies could be used both for good purposes and violations of human rights, particularly the right to privacy. 

Ms. Nyst said that the right to privacy was a fundamental part of human dignity, and it guaranteed the protection of other human rights, for example the right to freedom of expression.  The Universal Declaration of Human Rights and International Covenant on Civil and Political Rights, as did most national constitutions and some regional conventions, enshrined the protection of the right to privacy. 

Ms. Botero said that systematic collection of data could entail a negative effect on human rights, including the right to privacy and the right to freedom of expression.  Freedom of association and assembly, freedom of expression, and the right to health and sexuality could also be threatened.  Sufficient controls had to be elaborated so that those negative effects on human rights could be prevented.

Ms. Cleveland said States were clearly obligated to protect the right to privacy and freedom of expression of all persons within their territory or jurisdiction.  Actions outside of a State’s territory also fell under this obligation. Surveillance activities were however not per se unlawful, and States had legitimate law enforcement and security interests that human rights were designed to accommodate. 

Mr. Nissim said that three or four years ago, when the first Arab Spring came in some countries, Governments had asked Orange to do things that it did not want to do.  Orange wished to resolve issues where Governments had direct access to their networks, and to have a process in which Governments could ask it to do things.  It did feel that Governments should be the first ones to be transparent. 

In the discussion that followed, speakers noted that the digital revolution brought liberation, but also new challenges.  Alongside the wonderful opportunities for communication, knowledge and business, came new forms of abuse and crime, and alongside the explosion of access to knowledge came new questions about data storage, privacy and access to information.  The importance of ensuring that any State surveillance of citizens was proportionate and fair, respected international law and conventions, and was governed by the rule of law with oversight by civil authorities, was emphasized.  There was a need for the review of procedures, practices and legislation with regard to digital communications in order to ensure that the right to privacy was protected. 

Speakers said the collection of personal information on foreigners was a clear violation of the international protection of the right to privacy.  The fight against terrorism could not be used as an excuse for such a human rights violation. The important role played by internet providers in ensuring the right to privacy was underlined, and they were encouraged to be more transparent and accountable

Speaking in the discussion were Germany on behalf of a group of States, European Union, Cuba on behalf of a group of like-minded countries, Pakistan on behalf of the Organization for Islamic Cooperation, Canada, India, Indonesia, Belgium, Ireland, Estonia, Malaysia, United Nations Educational Scientific and Cultural Organization, United Arab Emirates, Russia, France, Slovenia, Italy, Netherlands, Venezuela, China, Australia, United States, Ecuador, Sierra Leone, Algeria, Romania, and United Kingdom. 

Union of American Civil Liberties, Association for Progressive Communications, Article 19 International Centre against Censorship, and Korea Centre for United Nations Human Rights Policy also spoke. 
The Human Rights Council during its noon meaning will continue its interactive dialogue with the Special Rapporteur on truth, justice, reparation and non-recurrence and the Chairperson of the Working Group on arbitrary detention.  Later this afternoon the Council will hear the report of the Intergovernmental Working Group on the Right to Development, as well as the presentation of the thematic reports of the Secretary-General and High Commissioner for Human Rights, to be followed by a general debate.
Documentation

The Council has before it the report of the Office of the United Nations High Commissioner for Human Rights on the right to privacy in the digital age (A/HRC/27/37)

Opening Statements

BAUDELAIRE NDONG ELLA, President of the Human Rights Council, in his introductory remarks recalled General Assembly resolution 25/117 in which it affirmed that the rights held by people offline must also be protected online and highlighted the right to privacy for the enjoyment of the right to the freedom of expression.  The General Assembly also reiterated its determination to protect the right to privacy, particularly in the context of digital communications.

FLAVIA PANSIERI, United Nations Deputy High Commissioner for Human Rights, in her opening statement said that for millions the digital age had opened the door to emancipation and had been perhaps the greatest liberation movement the world had ever known.  As an example, over one million people had participated digitally in the consultations for the post-2015 development framework and contributed their ideas and views.  Still, those digital platforms were vulnerable to surveillance, interception and data collection and deep concerns had been expressed as policies and practices that exploited this vulnerability had been exposed around the globe.  Surveillance practices could have real impact on human rights, and there were credible reports suggesting that they led to torture and other forms of ill-treatment.  The High Commissioner’s report on the subject, being presented at the current session of the Council, revealed that in many States, the deliberate lack of adequate national legislation and enforcement, weak procedural safeguards and ineffective oversight contributed to widespread impunity for arbitrary or unlawful interference in the right to privacy.  The report also examined the protection afforded by international human rights law regarding privacy, including “interference with privacy” in online communications, and the question of whose rights were protected and where. 

States had an obligation to ensure that individuals’ privacy was protected by law against unlawful or arbitrary interference, which meant that all forms of communication surveillance must be conducted on the basis of publicly accessible law which, in turn, must comply with States’ own constitutional regimes and international human rights law.  With regard to extra-territorial surveillance and interception of digital communication, the report noted that, if such surveillance involved a State’s exercise of power, or effective control, it then engaged a State’s human rights obligations.  International human rights law was also explicit on the principle of non-discrimination and States must ensure that any interference with the right to privacy complied with the principles of legality, proportionality and necessity regardless of the ethnicity, nationality, location or other status of the people whose communications it was monitoring.  Procedural safeguards and effective oversight were crucial, and lack of such mechanisms had contributed to impunity for arbitrary or unlawful intrusions on the right to privacy in the digital environment.  States also had an obligation to provide effective remedies for the violation of privacy through digital surveillance.  The role of the private sector was another vital issue, as Governments increasingly relied on corporations to conduct and facilitate digital surveillance and Ms. Pansieri recalled that the Guiding Principles on Business and Human Rights provided a global standard for preventing and addressing diverse human rights effects of business activities.

Statements by the Panellists

MARKO MILANOVIC, Associate Professor at Nottingham University and Panel Moderator, said that this topic was one of the most important in modern human rights law.  Modern technologies could be used both for good purposes and violations of human rights, particularly the right to privacy.  He introduced Carly Nyst and asked why the right to privacy was so important in the digital age and why it impacted on everyone. 

CARLY NYST, Legal Director, Privacy International, said that the right to privacy was a fundamental part of human dignity, and it guaranteed the protection of other human rights, for example the right to freedom of expression.  The right to privacy was considered a fundamental right when the Universal Declaration of Human Rights was drafted, and remained so today.  The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, as did most national constitutions and some regional conventions, enshrined the protection of the right to privacy. 

MARKO MILANOVIC, Associate Professor at Nottingham University and Panel Moderator, asked Catalina Botero how privacy interacted with other human rights. 

CATALINA BOTERO, Inter-American Commission on Human Rights Special Rapporteur on freedom of expression, said that systematic collection of data could entail a negative effect on human rights, including the right to privacy and the right to freedom of expression.  Freedom of association and assembly, freedom of expression, and the right to health and sexuality could also be threatened.  Sufficient controls had to be elaborated so that those negative effects on human rights could be prevented. 

MARKO MILANOVIC, Associate Professor at Nottingham University and Panel Moderator, asked Sarah Cleveland about extraterritorial surveillance by States and its impact on human rights and the right to privacy. 

SARAH CLEVELAND, Professor at Columbia Law School, said that non-citizens clearly had privacy rights, despite the distinction sometimes made by States between States citizens and non-citizens.  Under the International Covenant on Civil and Political Rights, States were clearly obligated to protect the right of privacy and freedom of expression of all persons within their territory or jurisdiction.  Actions outside of a State territory also fell under this obligation.  Digital surveillance could engage a State’s human rights obligations.  Surveillance activities were however not per se unlawful, and States had legitimate law enforcement and security interests that human rights were designed to accommodate. 

YVES NISSIM, Deputy Chief CSR officer at Orange, former Chair of the Telecommunications Industry Dialogue, said that three or four years ago, when the first Arab Spring came, in some countries, Governments had asked Orange to do things that it did not want to do.  Based on the United Nations Guiding Principles it had developed a set of 10 principles.  Orange had a lot of people on the ground, a few thousand in some countries.  The safety of these people was the most important thing, even above the question of privacy.  Governments were direct stakeholders.  Orange was in the middle of the problem.  It was the technical solution, but it would like to have behaviour that respected human rights, freedom of speech and privacy.  Orange wished to resolve issues where Governments had direct access to their networks, and to have a process in which Governments could ask it to do things.  It did feel that Governments should be the first ones to be transparent. 

MARKO MILANOVIC, Associate Professor, Nottingham University and Panel Moderator, said there were different formulations in treaties when it came to the protection of the right to privacy.  Could more be said about the general framework of international human rights and the interference with the legality of privacy?

CATALINA BOTERO, Inter-American Commission on Human Rights Special Rapporteur on freedom of expression, said that in the Inter- American Commission for Human Eights and Directorate for Freedom of Expression, it was believed that what was said in the High Commissioner’s report was directly applicable in domestic and international law.  It was understood that that kind of surveillance had an impact on freedom of expression.  There had to be a systematic interpretation of articles that recognized and defended the right to privacy, and a proportionality test had to be taken.   Any surveillance programme had to be enshrined in a lawful law that passed international standards and which was clear and specific in its content.   Surveillance policy had to be entirely necessary. 

MARKO MILANOVIC, Associate Professor, Nottingham University and Panel Moderator, took up the issue of proportionality and asked Ms. Cleveland to elaborate on what “necessary and proportionate” required.

SARAH CLEVELAND, Professor, Columbia Law School, said that the more acute the private needs of the individual the more tailored measures needed to be.  The European Court of Human Rights had given some reasonable indicators as to what measures were appropriate to protect a State’s security interests.  The important issue was what procedural safeguards were in place to ensure that the regime was applied properly and to ensure that surveillance was not abused.

MARKO MILANOVIC, Associate Professor, Nottingham University and Panel Moderator, said that everyone agreed that surveillance could be used to good ends and that the State’s use of surveillance must be legal.  He asked panellists to comment on the content-method data distinction.

CARLY NYST, Legal Director, Privacy International, said that this distinction must be abandoned because it was a dangerous distinction to make, particularly in the context of the changed technologies.  For example, this distinction meant that data such as an address on an envelope could be collected without a warrant, while the content of the letter was subject to a legal order.  The data that existed today about private communications were so much more valuable and comprehensive, and contained much more than an address on an envelope, to include such data as health status, financial transactions and others.  A lot of personal information could be revealed from the use of metadata.  There was a serious need to examine this distinction and courts in some countries had made movements in this direction.

YVES NISSIM, Deputy Chief CSR officer at Orange, former Chair of the Telecommunications Industry Dialogue, said that this distinction no longer held and with regard to operators’ perspective, data such as call logs were retained for technical reasons.  Any access that the Government had to technical data which companies held required appropriate legal authorisation. 


Discussion

Germany, in a joint statement on behalf of a group of seven countries, shared the view that international human rights law provided a clear framework for the protection of the right to privacy in the digital age.  What was lacking was implementation by States.  The Group underlined that this framework also applied to States’ extraterritorial activities.  European Union said that the right to privacy was enshrined in international human rights instruments.  Safeguarding the right to privacy in the digital age was a key issue for the European Union.  Lack of governmental transparency with regard to data collection activities had contributed to privacy violations.  The European Union also underlined the importance of non-discrimination with regards to the right to privacy. 

Cuba, speaking on behalf of a like-minded group of countries, said that the collection of personal information on foreigners was a clear violation of the international protection of the right to privacy.  The fight against terrorism could not be used as an excuse for such a human rights violation.  The Group strongly urged States to stop the mass-collection of data of foreigners.  Pakistan, speaking on behalf of the Organization of Islamic Cooperation, said that States were using collected data against non-citizens outside of their borders.  The Organization of Islamic Cooperation believed this was an area of great concern, particularly considering that one country had added opportunities as much of the world’ electronic communications passed through it. 

Canada said that the International Covenant on Civil and Political Rights protected the right to privacy for all persons under a State’s jurisdiction.  Canada was deeply concerned by the growing trend of States illegally using new technologies to control their citizens, repress freedom of expression and block access to information.   India said that there was an imperative of balancing national security and the right to privacy.  Digital surveillance and the gathering of personal information had to be carried out in a proportionate and non-arbitrary manner, with legitimate purpose, in accordance with the rule of law and with effective oversight.  Could a democratic and transparent global internet governance structure facilitate the protection of the right to privacy?

Indonesia underlined the need to protect and respect the right to privacy, and called on States and businesses to do so.  Indonesia insisted that States’ obligations to protect the right to privacy applied to extraterritorial activities as well.  Indonesia underlined the important role played by internet providers in ensuring the right to privacy, and encouraged them to be more transparent and accountable.  Belgium, while it acknowledged the positive human rights impacts of new technologies, said that the right to privacy was a cornerstone of democracy and had to be protected.  The role of the private sector was crucial and there was a need to raise awareness of companies.  Belgium had already undertaken measures in this regard.

Estonia said the digital revolution brought liberation, but also new challenges.  Alongside the wonderful opportunities for communication, knowledge and business came new forms of abuse and crime, and alongside the explosion of access to knowledge came new questions about data storage, privacy and access to information.  Ireland emphasized the importance of ensuring that any State surveillance of citizens was proportionate and fair, respected international law and conventions, and was governed by the rule of law with oversight by civil authorities.  There had to be adequate and effective guarantees against abuses which might undermine democracy.

Malaysia said there was a need for review of procedures, practices and legislation with regard to digital communications in order to ensure that the right to privacy was protected.  Malaysia had enacted the Personal Data Protection Act 2010 that regulated processing of personal data in commercial transactions.  United Nations Educational, Scientific and Cultural Organization (UNESCO) was undertaking a comprehensive study on internet issues.  The study focused on the four issues of freedom of expression, privacy, access to knowledge and information and ethics of the information society, and would also put forward options for action for UNESCO.

Association for Progressive Communications said that the right to privacy was a fundamental human right and any limitations had to be exceptional, proportional and lawful.  It agreed that the Human Rights Council’s response to privacy violations had to involve all stakeholders.  Union of American Civil Liberties in a joint statement with Human Rights Watch said that many United States-based journalists had noted that sources had become much more skittish in light of revelations of large-scale surveillance.  The Council was called upon to establish a mandate for a Special Rapporteur on the right to privacy.

MARKO MILANOVIC, Associate Professor, Nottingham University and Panel Moderator, said that the delegations asked a number of questions concerning extraterritorial application of the law and how the existing legal norms applied to extra-territorial surveillance.  This was a topic of great legal complexity.  The second group of questions concerned safeguards, accountability and oversight mechanisms that could be put in place.  There was a lot of national legislation on surveillance issues, but it lagged behind technology development.  He asked Ms. Nyst about safeguard mechanisms that must be put in place to ensure they were in accordance with Article 17 of the International Covenant on Civil and Political Rights.

CARLY NYST, Legal Director, Privacy International, said that Governments must take the first step to be more transparent and honest about their surveillance activities; companies also must participate in eradicating secrecy around surveillance.  The second precondition to effective oversight and safeguard was to improve appreciation for technology in order to understand how the law applied, and this was particularly important for judges and lawyers.  There was a need for an independent oversight mechanism with a good understanding of how technologies worked which could review the State action and ensure that it was conducted in accordance with the law and human rights standards.  The crux of the matter was that technology changed quickly and everyone was trying desperately to catch up.  There was not enough guidance on what the human rights framework was and this could be an effective role for the Human Rights Council.

MARKO MILANOVIC, Associate Professor, Nottingham University and Panel Moderator, asked Ms. Botero about institutional reforms that States could implement.

CATALINA BOTERO, Inter-American Commission on Human Rights Special Rapporteur on freedom of expression, said that there was a huge difference between States as to which laws governed this issue.  Legally speaking, there was chaos.  There was also a lack of a multi-stakeholder forum which could marry technology savvy with the human rights norms.  Some of the measures that could be put in place were more control, including judicial, inter-organic and political control; procedural sanctions such as prior judicial orders; the involvement of ombudsmen; and accountability of the judiciary, which included the ability to track which judge issued which surveillance orders and when.

MARKO MILANOVIC, Associate Professor, Nottingham University and Panel Moderator, asked the panellists about the role played by courts and judicial oversight on surveillance, and specifically with regards to the right to remedy. 

SARAH CLEVELAND, Professor, Columbia Law School, said that effective remedy was a State’s obligation when human rights were violated.  However remedy was often not guaranteed regarding the violations of the right to privacy, for example because demonstrating an actual or sufficient injury could be problematic.  Transparency allowed citizens to know about activities undertaken and to some extent prevent privacy violations. 

MARKO MILANOVIC, Associate Professor, Nottingham University and Panel Moderator, asked whether it was a good thing for States to have dedicated, secret courts for surveillance issues, or whether this should be in the hands of ordinary courts?

SARAH CLEVELAND, Professor, Columbia Law School, said that it was a difficult question to answer, and insisted on the need to guarantee the confidentiality of collected information.

CARLY NYST, Legal Director, Privacy International, said that surveillance was about an asymmetry of power in favour of the State.  Courts were here to rebalance everything in favour of the victims, and had to do so to allow for rigorous scrutiny and oversight on government activities.  Secret courts dealing with this were dangerous as they would serve at legitimizing governments’ secret activities violating the right to privacy. 

MARKO MILANOVIC, Associate Professor, Nottingham University and panel moderator, said on the role of private companies that an issue was raised about transparency and their participation in governmental surveillance schemes.  What could they do in assisting individuals in relation of the right to remedy?

YVES NISSIM, Deputy Chief CSR officer at Orange, former Chair of the Telecommunications Industry Dialogue, said that in the last few months transparency had been a big issue.  In terms of telecommunications companies, it was bound with local laws.  The situation was very different from country to country.  There were countries that did allow it to provide data after the event, some that did not allow it to say anything but did provide some info on privacy, and others that did not allow anything.  More telecommunications companies were working on the subject.  Transparency had to come first from Governments.  On before-event transparency, there was the matter of the emergency of the situation, where governments were asking for breach of privacy by telecommunications companies.  There was a huge effort to be made on this situation, in which multi-stakeholder dialogue was very important.   

MARKO MILANOVIC, Associate Professor, Nottingham University and Panel Moderator, said there had been a question from the floor on what was thought about some dedicated legal instruments at the international level that would more clearly elaboration what kind of obligations private entities should have.

YVES NISSIM, Deputy Chief CSR officer at Orange, former Chair of the Telecommunications Industry Dialogue, said Orange was actively advocating for this kind of situation.  If the United Nations or any other multinational entities could have this kind of law it would be great.  But again, in the field, local laws were probably more important than international laws. 

MARKO MILANOVIC, Associate Professor, Nottingham University and Panel Moderator, said on the question of extraterritoriality and citizenship that several delegations had endorsed the findings of the High Commissioner’s report that nationality-based distinctions were inappropriate.  What could be said about citizenship-based distinctions?

CARLY NYST, Legal Director, Privacy International, said that question went right to the heart of extraterritorial surveillance.  It must not be forgotten that the large majority of surveillance happened in country between the Governments and their citizens.  A pressing issue was that it was entirely baseless to maintain a distinction based on citizenship.  It was practically ineffective and impossible to continue to distinguish that way.  The internet did not discriminate or register from where a communication originated or ended, or determine nationality.

YVES NISSIM, Deputy Chief CSR officer at Orange, former Chair of the Telecommunications Industry Dialogue, expanding on the issue of extra-territorial aspects of surveillance, recalled incidents that had occurred during the Arab Spring when they had to cut the network or send base messages to all its customers under the threat of violence by a State.  Orange hoped that the United Nations would bring into life the practice of freedom of expression and other human rights.

United Arab Emirates said that digital development raised a number of issues and concerns and had some negative consequences for human rights; protecting human rights in the digital age required a balanced approach in which attention would be given to security considerations and individual rights.  Russia believed that the right to privacy in the digital age was one of the most topical human rights issues today; it had raised many human rights challenges and digital espionage had become a dangerous habit.  Strong legal protection was needed to prevent the violation of the right to privacy.  France said that the revelations about surveillance had raised legitimate concerns of citizens and stressed the responsibility of States to put in place laws for the protection of the right to privacy, which would be in line with international standards, and to establish effective national oversight mechanisms. 

Slovenia expressed concern about the encroachment of digital technologies on the right to privacy and stressed that the legislation must be adapted to the realities of today’s world.  Slovenia asked about best alternatives to protect the right to privacy in the absence of political will.  Italy said one of the key challenges for the international community was to define the thin line separating an arbitrary interference from a justifiable one and define it properly.  Netherlands stressed the responsibility of Governments to protect their societies and citizens, and to protect the individual from the strength of the State.  The right to privacy was a key human right and infringement of this right should always be consistent with international standards.  Venezuela said the world must remain vigilant and combat the practice of extra-terrestrial surveillance.  An issue of concern was that some of the companies had been developing their own surveillance systems to collect various data on their clients.

China said that illegal or arbitrary surveillance violated the rights of citizens.  Large scale electronic surveillance undermined the sovereignty of other States.  The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights contained provisions on the right to privacy.  China highlighted the importance of a code of conduct for States.  The digital age could not suffer double standards and had to be based on a respectful and democratic order.  Australia said that governments had a duty to ensure the safety of their citizens and the privacy of their personal information.  The protection of individual privacy had to be underpinned by legislation that reconciled both the domestic and international legal obligations of States.  Australia’s legislation protected the right to privacy and to remedy. 

United States demanded clarifications on the panellists’ views on effective oversight of surveillance programmes and on encouraging transparency while recognising the need for secrecy.  The United States was exploring how to apply privacy protections to non-United States citizens abroad, and had concerns regarding the expansive views expressed in the report on the extraterritorial application of the Covenant.  Ecuador recognized that States could intervene on digital communications for security purposes, but this had be proportional and comply with international human rights standards and the principle of States’ sovereignty.  Ecuador was concerned that some States had misinterpreted international law to consider that human rights were not applicable to extraterritorial activities.  Sierra Leone agreed that the interconnectedness of various telecommunication platforms and surveillance activities threatened individual rights, and urged all governments to respect the right to privacy and to enforce more stringent regulatory mechanisms and safeguards. 

Article 19 said that privacy and freedom of expression were closely linked.  Repressing regimes were using online surveillance to monitor and repress the activities of human rights defenders and undermine peaceful association and assembly.  Article 19 referred to cases of repression in Ethiopia.  Korea Center for United Nations human Rights Policy said that mass surveillance by the authorities of the Republic of Korea had infringed on the right to privacy of Korean citizens.  It expressed concerns that surveillance practices had been used to oppress opponents and activists.

Algeria said the scope of communications surveillance had led to concern within States which in turn had given rise to a submission of a resolution to the Council reaffirming the need for States to ensure that no one was subjected to arbitrary or unlawful intrusion into privacy.  Romania considered that great progress made in information communications technology brought challenges in ensuring the promotion and protection of human rights.  It was agreed that Governments had to be vigilant and develop national surveillance policies to avoid abuses.  United Kingdom said it was fully and actively committed to upholding the right to privacy and to reaffirming that the rights which existed offline applied online.  It believed that the application of the International Covenant on Civil and Political Rights’ provisions on jurisdiction could only apply beyond a State’s territory in very exceptional circumstances. 

MARKO MILANOVIC, Associate Professor, Nottingham University and Panel Moderator, said delegations had expressed disagreement with the findings of the High Commissioner’s report.  The High Commissioner’s report’s basic idea was that jurisdiction in the context of Article 2 of the International Covenant on Civil and Political Rights required control of telecommunications infrastructure.

SARAH CLEVELAND, Professor, Columbia Law School, said that digital communications necessarily transcended  geography and that was a core problem being grappled with.   There had been a focus on jurisdiction outside territory involving effective control over a person or territory.  The High Commissioner’s report had drawn upon this approach.  Another way to think about the issue, leading to a similar approach, was the obligation to respect Article 2 of the International Covenant on Civil and Political Rights applying wherever a State acted.  

MARKO MILANOVIC, Associate Professor, Nottingham University and Panel Moderator, asked Ms. Botero to provide an Inter-American perspective on the issue of extra-territoriality and citizenship.

CATALINA BOTERO, Inter-American Commission on Human Rights Special Rapporteur on freedom of expression, said that the concerns expressed by American States stemmed from espionage and surveillance of citizens of their own countries, and as a Special Rapporteur she welcomed their genuine interest for their own citizens and then the concern about extraterritorial surveillance.  With regard to the comment of the Netherlands, Ms. Botero said that freedom of individuals was defined in a sphere where individuals themselves defined what was good and bad.

MARKO MILANOVIC, Associate Professor, Nottingham University and Panel Moderator, noted that a crucial set of issues raised in the discussion was that of sharing information and intelligence, both internally, between State agencies or between States, and asked about a framework which would ensure legitimacy of such sharing.

CARLY NYST, Legal Director, Privacy International, said that any information received from another State should be subject to the same oversight as if obtained directly and should be authorised by the judiciary.

SARAH CLEVELAND, Professor, Columbia Law School, on the same issue, said that the critical issue was knowing whether the gathering and collection of the information was legitimate.

CARLY NYST, Legal Director, Privacy International, recalled the 1990s decision of the Human Rights Committee concerning databases.

MARKO MILANOVIC, Associate Professor, Nottingham University and Panel Moderator, took up the issue of exchange in technological advancement and the seepage of various surveillance techniques and asked Mr. Nissim to comment.

YVES NISSIM, Deputy Chief CSR officer at Orange, former Chair of the Telecommunications Industry Dialogue, said that technology was becoming more complex and also more available and Orange stressed that its vocation was to use technology to serve customers, and admitted that such technologies could be used for surveillance.  Citing a report by the Human Rights Watch, Mr. Nissim mentioned the case of Ethiopia which had put a back door on a piece of equipment used by clients.  In the game of protecting privacy, technology always could be one step ahead.

SARAH CLEVELAND, Professor, Columbia Law School, said that technological change did not mean that human rights standards could no longer be applied.  Established legal frameworks could be applied to protect the right to privacy in the digital age. 

CATALINA BOTERO, Inter-American Commission on Human Rights Special Rapporteur on freedom of expression,  said that safeguards were a very important issue.  Courts secrecy had to be dealt with very carefully.  Decisions taken by non-specialist judges could have a negative effect on the architecture of the internet, hence the importance of having specialised judges. 

MARKO MILANOVIC, Associate Professor, Nottingham University and Panel Moderator, asked what the Council should do next in terms of follow up.

CARLY NYST, Legal Director, Privacy International, said the Council should take responsibility over the issue as a long-term issue and not allow it to be a short-term issue.  It should recognize that it had failed to perhaps keep up with changes in technology and adapt appropriately, and now it was time to look at how it could tackle these issues.  Civil society would support the Council in this.  A dedicated mandate on this issue was essential.

MARKO MILANOVIC, Associate Professor, Nottingham University and Panel Moderator, said the whole question was about how the legal community could also keep up with the scientific and technological community.  Could a few words be said on the continued engagement the scientific and technological communities should have with the human rights or legal community in keeping this issue properly within a human rights framework?

YVES NISSIM, Deputy Chief CSR officer at Orange, former Chair of the Telecommunications Industry Dialogue, said it was definitely a collective mission.  The United Nations promoted a major role in developing guiding standards.  All Governments’ power to intercept or access communication should be founded on a clear and transparent legal framework that accommodated advanced technologies and in accordance with international law.  The United Nations and other regional organizations had a unique capacity to convene Governments and other stakeholders to discussion.

MARKO MILANOVIC, Associate Professor, Nottingham University and Panel Moderator, said there were reasons to be very optimistic about how the discussion had progressed, bearing in mind the very useful comments received from the floor.  There was a very large degree of agreement among States about how the right to freedom of expression and privacy should be protected.  Obviously there would be some disagreement with regards to some of the specific questions within the report.  However they should be encouraged that they were still moving in the same general direction.


For use of the information media; not an official record