The Right to Privacy in the Digital Age

                This post is a summary of four articles. The first was published with the title above at  http://www.ohchr.org/EN/Issues/DigitalAge/Pages/DigitalAgeIndex.aspx. The second was published in November of 2014 at  http://www.ohchr.org/EN/NewsEvents/Pages/MassSurveillance.aspx. The third was published at   http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21321&LangID=E. The fourth was published at http://www.ohchr.org/EN/Issues/FreedomOpinion/Pages/SR2017ReporttoHRC.aspx

           Advances in information communication technology are dramatically improving real-time communication and information-sharing. By improving access to information and facilitating global debate, they foster democratic participation. By amplifying the voices of human rights defenders and helping to expose abuses, these powerful technologies offer the promise of improved enjoyment of human rights. But at the same time it has become clear that these new technologies are vulnerable to surveillance and interception. Recent discoveries have revealed how new tech are being developed covertly, often to facilitate these practices, with chilling efficiency. Such surveillance threatens individual rights, including right to privacy and right to freedom of expression and association, and inhibits the free functioning of a vibrant civil society. In December 2013, the U.N.  General Assembly adopted resolution 68/167, which expressed deep concern at the negative impact that surveillance and interception of communication may have on human rights, The General Assembly affirmed that the rights held by people offline must also be protected online, and it called upon all States to respect and protect the right to privacy in digital communication. The General Assembly called on all States to review their procedures, practices and legislation related to communications surveillance, interception and collection of personal data and emphasized the need for States to ensure the full and effective implementation of their obligations under international human rights law. As General Assembly resolution recalled, international human rights law provides the universal framework against which any interference in individual privacy must be assessed. Other international human rights instruments contain similar provisions. While the right to privacy under international human rights law is not absolute, any instance of interference must be subject to a careful and critical assessment of its necessity, legitimacy and proportionality. Through the adoption of resolution 68/167, the General Assembly requested that the High Commissioner for Human Rights prepare a report on the right to privacy in the digital age. In the words of the resolution, the report was to examine: "The protection and promotion of the right to privacy in the context of domestic and extraterritorial surveillance and/or interception of digital communications and collection of personal data, including on a mass scale."

             The digital communications revolution has led to "perhaps the greatest liberation movement the world has ever known," the Deputy High Commissioner for Human Rights Flavia Pansieri suggests. Addressing a special discussion at the Human rights Council in Geneva, Pansieri used as an example the online dialogue held as a precursor to the negotiation of the post 2015 sustainable development goals, a dialogue in which more than a million people participated. Yet these digital communications platform are not only vulnerable to surveillance, interception and data collection, they may actually facilitate such practices, putting at risk a range of human rights. Noting the particularly serious impact on the right to freedom of expression, of peaceful assembly and association, the right to family life and to health, also may be at risk. "Information collected through digital surveillance has been used to target dissidents. There are also credible reports suggesting that digital tech have been used to gather information that has then led to torture and other forms of ill-treatment," Pansieri said. The High Commissioner expresses concern that "overt and covert digital surveillance in jurisdictions around the world have proliferated, with governmental mass surveillance emerging as a dangerous habit rather than an exceptional measure." The report highlights examples of digital surveillance, including instances where governments have threatened to ban the services of telecommunications companies unless given access to traffic on their networks; used surveillance to target political opponents, or dissidents; and required companies systematically to disclose bulk information on customers and employees. Pansieri said that States must demonstrate that any interference with an individual's privacy is both necessary and proportionate to address the specific identified security risk. "Mandatory third-party data retention, where telephone companies and internet service providers are required to store metadata about communications by their customers, for subsequent access by law enforcement and intelligence agencies, appears neither necessary nor proportionate," she said. The report observes that States are obliged to ensure that individuals' privacy is protected by law against unlawful or arbitrary interference. Laws protecting privacy must be clear and publicly accessible: secret rules and secret interpretations of the law, even if issued by judges, are not legally adequate. Neither are laws or rules that give excessive discretion to executive authorities such as security and intelligence services.

             The U.N. Special Rapporteur on the right to privacy, Joseph Cannataci. has presented his report to the Human Rights Council, denouncing current surveillance legislation and calling to States to respect privacy as a universal right in the digital age. He said, "The issue of governmental surveillance deserves more attention than ever. I am deeply concerned that the right to privacy will simply not experience a full transition to the digital age. In general, laws have been drafted and rushed through the legislative process of States with clear political majorities to legitimize practices that should never have been implemented." The U.N. expert further emphasized that he did not support current legislation aimed at regulating surveillance: "There is little or no evidence to persuade me of either the efficacy or the proportionality of some of the extremely intrusive measures that have been introduced by new surveillance laws in france, the U.K. and the U.S." He believed that such measures amounted, in part, to "gesture politics" by politicians who wished to seen to be doing something, even if the laws did not really work in practice. Mr. Cannataci went on to criticize the manipulation of fear of terrorism by policy-makers, urging them to: " Desist from playing the fear card, and improve security through proportionate and effective measures, not with unduly disproportionate privacy-intrusive laws." Citing Cardinal Vincent Nichols he said: "I do not believe that any form of leadership is best exercised by using fear. True political leadership does not play the fear card." The Special Rapporteur stressed the universal nature of the privacy saying: "States should prepare themselves to ensure that both domestically and internationally, privacy is respected as a truly universal right."

            Threats to digital expression and internet freedom are more pronounced than ever. Internet shutdowns have emerged as a popular means of information control. Government surveillance continues to intensify worldwide, jeopardizing the privacy and security of millions. Net neutrality, the long-held premise that all internet data should ve treated equally and without undue interference, has come under attack. In this increasingly hostile environment, what are the human rights responsibilities of the ICT sector, particularly those actors that facilitate the provision of internet access, and serve as gatekeepers of the digital infrastructure? To address this question, the Special Rapporteur first examines the role of States in undermining freedom of expression online, and what their obligation to protect this fundamental right entails. The Special rapporteur subsequently evaluates the role of digital access providers, which have become synonymous with digital access. The Human Rights Council, in its resolution 32/13, condemned unequivocally measures to intentionally prevent or disrupt access to or dissemination of information online in violation of international human rights laws, and called upon all States to refrain from and cease such measures. This condemnation, which is critical to the Council's promotion of human rights online, should be supplemented and specified. It is also critical for the Council and States to draw the connections between privacy interference and freedom of expression. The Special Rapporteur is particularly concerned about reports of threats and intimidation of companies and their employees and their equipment and infrastructure. The protective role that States may exercise over the private sector can only go so far. They should not be promoting the economic gain of private entities over users' rights to freedom of opinion. For years now, individuals and companies have understood that they play an essential role in the vast expansionof access to ICT services. they are a business in which the model for success should involve diversity and transparency. they should take the principles identified in this report as tools to strengthen their own roles in advancing users' rights.