UN rights chief warns of ‘disturbing lack of transparency’ for digital mass surveillance

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High Commissioner for Human Rights Navi Pillay.  UN Photo/Paulo Filgueiras
High Commissioner for Human Rights Navi Pillay.
UN Photo/Paulo Filgueiras

16 July 2014 – The top United Nations human rights official today warned of the “disturbing” lack of transparency in governmental surveillance policies and practices, “including de facto coercion of private sector companies to provide sweeping access to information and data relating to private individuals without the latter’s knowledge or consent.”

“This is severely hindering efforts to ensure accountability for any resulting human rights violations, or even to make us aware that such violations are taking place, despite a clear international legal framework laying down Governments’ obligations to protect our right to privacy,” UN High Commissioner for Human Rights, Navi Pillay said in Geneva today.

Introducing a report compiled by her Office entitled, The Right to Privacy in the Digital Age, she stressed the need for vigilance and procedural safeguards against governmental surveillance programmes.

“The onus is on the State to demonstrate that such interference is neither arbitrary nor unlawful,” Ms. Pillay said, noting that 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.”

According to the report, to be presented this October to the Human Rights Council and the UN General Assembly, governmental mass surveillance is “emerging as a dangerous habit rather than an exceptional measure” and practices in many States reveal “a lack of adequate national legislation and/or enforcement, weak procedural safeguards, and ineffective oversight.”

The High Commissioner’s report points out that the secret nature of specific surveillance powers brings with it a greater risk of arbitrary exercise of discretion which, in turn, demands greater precision in the rule governing the exercise of discretion, as well as additional oversight. Therefore, States must establish independent methods to monitor such surveillance one that include administrative, judicial and parliamentary branches of government.

“The involvement of all branches of Government in the oversight in surveillance programmes, as well as of an independent civilian oversight agency, is essential to ensure the effective protection of the law,” the report states, noting that when conducted in compliance with the law, including international human rights law, surveillance can be effective for legitimate law enforcement or intelligence purposes.

On the role of the private sector, the report points to strong evidence of a growing reliance by Governments on enterprises to conduct and facilitate digital surveillance and warns that a company that supplies data to the State “risks being complicit in or otherwise involved with human rights abuses.”

When faced with Government demands for access to data, enterprises are expected to honour the principles of human rights. This can mean interpreting such demands as narrowly as possible, seeking clarification from a Government with regard to the scope and legal foundation for the demand, requiring a court order before meeting government requests for data, and communicating transparently with users about risks and compliance with the demands.

“The complexity of the challenges to the right to privacy in this rapidly and dramatically evolving digital age is going to require constant scrutiny and dialogue between all key sectors,” Ms. Pillay said, adding that at stake are some incredibly important principles which go right to the core of each and every individual’s rights.
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2 thoughts on “UN rights chief warns of ‘disturbing lack of transparency’ for digital mass surveillance

  1. Conclusions and recommendations
    47. 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 A/HRC/27/37 16 lack of adequate national legislation and/or enforcement, weak procedural safeguards,
    and ineffective oversight, all of which have contributed to a lack of accountability for arbitrary or unlawful interference in the right to privacy.
    48. In addressing the significant gaps in implementation of the right to privacy, two observations are warranted. The first is that information relating to domestic and extraterritorial surveillance policies and practices continues to emerge. Inquiries are ongoing with a view to gather information on electronic surveillance and the collection and storage of personal data, as well as to assess its impact on human rights. Courts at the national and regional levels are engaged in examining the legality of electronic surveillance policies and measures. Any assessment of surveillance policies and practices against international human rights law must necessarily be tempered against the evolving nature of the issue. A second and related observation concerns the disturbing lack of governmental transparency associated with surveillance policies, laws and practices, which hinders any effort to assess their coherence with international human rights law and to ensure accountability.
    49. Effectively addressing the challenges related to the right to privacy in the context of modern communications technology will require an ongoing, concerted multi-stakeholder engagement. This process should include a dialogue involving all interested stakeholders, including Member States, civil society, scientific and technical communities, the business sector, academics and human rights experts. As communication Technologies continue to evolve, leadership will be critical to ensuring that these technologies are used to deliver on their potential towards the improved enjoyment of the human rights enshrined in the international legal framework.
    50. Bearing the above observations in mind, there is a clear and pressing need for vigilance in ensuring the compliance of any surveillance policy or practice with international human rights law, including the right to privacy, through the development of effective safeguards against abuses. As an immediate measure, States
    should review their own national laws, policies and practices to ensure full conformity with international human rights law. Where there are shortcomings, States should take steps to address them, including through the adoption of a clear, precise, accessible, comprehensive and non-discriminatory legislative framework. Steps should
    be taken to ensure that effective and independent oversight regimes and practices are in place, with attention to the right of victims to an effective remedy.
    51. There are a number of important practical challenges to the promotion and protection of the right to privacy in the digital age. Building upon the initial exploration of some of these issues in the present report, there is a need for further discussion and in-depth study of issues relating to the effective protection of the law, procedural safeguards, effective oversight, and remedies. An in-depth analysis of these issues would help to provide further practical guidance, grounded in international human rights law, on the principles of necessity, proportionality and legitimacy in relation to surveillance practices; on measures for effective, independent and impartial oversight; and on remedial measures. Further analysis also would assist business entities in meeting their responsibility to respect human rights, including due diligence and risk management safeguards, as well as on their role in providing effective remedies.

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  2. Just one of the paragraph that stood out to me but not limited to:
    Right to an effective remedy
    39. The International Covenant on Civil and Political Rights requires States parties to
    ensure that victims of violations of the Covenant have an effective remedy. Article 2,
    paragraph 3 (b) further specifies that States parties to the Covenant undertake “to ensure
    that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy”. States must also ensure that the competent authorities enforce such remedies when granted. As the Human Rights Committee emphasized in its general
    comment No. 31, failure by a State party to investigate allegations of violations could in and of itself give rise to a separate breach of the Covenant.34 Moreover, cessation of an ongoing violation is an essential element of the right to an effective remedy.
    Where human rights violations rise to the level of gross violations, non-judicial remedies will not be adequate, as criminal prosecution will be required.

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