New human rights goals to combat surveillance onslaught

Jeremy Malcolm blogs on new demands for humans rights sparked by a growing global consensus which thinks modern surveillance has gone too far. 

For some time now there has been a need to update understandings of existing human rights law to reflect modern surveillance technologies and techniques.

Nothing could demonstrate the urgency of this situation more than the revelations confirming the mass surveillance of innocent individuals around the world.

That is why the International Principles on the Application of Human Rights to Communications Surveillance have been launched.

The principles articulate what international human rights law "which binds every country across the globe" require of governments in the digital age.

They speak to a growing global consensus that modern surveillance has gone too far and needs to be restrained.

They also give benchmarks that people around the world can use to evaluate and push for changes in their own legal systems.

The product of over a year of consultation among civil society, privacy and technology experts (read here and here), the principles have already been co-signed by over hundred organisations from around the world.

The process was led by Privacy International, Access, and the Electronic Frontier Foundation and has been supported by Consumers International.

The release of the principles comes on the heels of a landmark report from the United Nations Special Rapporteur on the right to Freedom of Opinion and Expression, which details the widespread use of state surveillance of communications, stating that such surveillance severely undermines citizens' ability to enjoy a private life, freely express themselves and enjoy their other fundamental human rights.

And recently, the UN High Commissioner for Human Rights, Nivay Pillay, emphasised the importance of applying human right standards and democratic safeguards to surveillance and law enforcement activities.

"While concerns about national security and criminal activity may justify the exceptional and narrowly-tailored use of surveillance programmes, surveillance without adequate safeguards to protect the right to privacy actually risk impacting negatively on the enjoyment of human rights and fundamental freedoms," Pillay said.

Over the next year and beyond, groups around the world will be using them to advocate for changes in how present laws are interpreted and how new laws are crafted.

We encourage privacy advocates, rights organisations, scholars from legal and academic communities, and other members of civil society to support the principles by adding their signature.

To sign, please send an email to rights@eff.org, or visit this website. 

Summary of the Rights

•  Legality: Any limitation on the right to privacy must be prescribed by law.
•  Legitimate Aim: Laws should only permit communications surveillance by specified State authorities to achieve a legitimate aim that corresponds to a predominantly important legal interest that is necessary in a democratic society.
•  Necessity: Laws permitting communications surveillance by the State must limit surveillance to that which is strictly and demonstrably necessary to achieve a legitimate aim.
•  Adequacy: Any instance of communications surveillance authorised by law must be appropriate to fulfill the specific legitimate aim identified.
•  Proportionality: Decisions about communications surveillance must be made by weighing the benefit sought to be achieved against the harm that would be caused to users' rights and to other competing interests.
•  Competent judicial authority: Determinations related to communications surveillance must be made by a competent judicial authority that is impartial and independent.
•  Due process: States must respect and guarantee individuals' human rights by ensuring that lawful procedures that govern any interference with human rights are properly enumerated in law, consistently practiced, and available to the general public.
•  User notification: Individuals should be notified of a decision authorising communications surveillance with enough time and information to enable them to appeal the decision, and should have access to the materials presented in support of the application for authorisation.
•  Transparency: States should be transparent about the use and scope of communications surveillance techniques and powers.
•  Public oversight: States should establish independent oversight mechanisms to ensure transparency and accountability of communications surveillance.
•  Integrity of communications and systems: States should not compel service providers, or hardware or software vendors to build surveillance or monitoring capabilities into their systems, or to collect or retain information.

PRISM surveillance: Unpicking the myths and identifying the threats

Revelations about surveillance methods used by the US Government, prompted by leaks from intelligence operative Edward Snowden, are analysed by CI's digital expert, senior policy officer Jeremy Malcolm. 

Although the basics have been widely reported, there is still a lot of confusion out there about how all the pieces of the PRISM surveillance scandal fit together, so here's the rundown.

First, on Thursday 6 June, came the revelation in the Guardian of a secret court order requiring US phone carrier Verizon to disclose a complete set of records of telephone calls made over a three-month period.

Less than a day later the Guardian and Washington Post claimed that under a separate secret US government programme, named PRISM, the National Security Agency had direct access to the servers of major Internet companies including Google, Facebook, and Yahoo, enabling it to obtain content ranging from emails to chat transcripts, voice calls, photos and videos.

By Friday, all of the Internet companies concerned had denied knowledge of the PRISM programme, and President Obama defended both that programme and the secret court order to Verizon as modest encroachments on privacy. 

It was on Sunday 9 June that 29-year-old former NSA-contractor Snowden came forward as the informant, for which he had released a set of Powerpoint slides as evidence.

Although the initial reports suggested a broader scope, we now know that PRISM isn't really a separate surveillance programme in its own right, but just an NSA system which facilitates the transfer of information from Internet companies under various other programmes for the use of NSA operatives.

The affected companies' denial of knowledge of PRISM is therefore most probably true.

But those other programmes are bad enough. In addition to those already mentioned, a programme similar to that used to obtain the Verizon call data is used to obtain metadata about Internet communications.

This programme, called BLARNEY, gathers and stores metadata as it flows along Internet network backbones. Another Patriot Act amendment authorises the interception of the content of foreign-to-foreign communications that transit through the United States.

This is what we think we know, but it is difficult to know how much of the truth has yet been told.

On March 12, 2013, the NSA's James Clapper had told the United States Senate Select Committee on Intelligence that the NSA does not wittingly collect any type of data on millions or hundreds of millions of Americans. In the light of subsequent revelations, there is no way around it – that was a lie.

A sour taste was also left in the mouths of many around the world when President Obama's response to the recent revelations was, “This does not apply to US citizens and it does not apply to people living in the United States”, discounting the effect on the privacy of most innocent citizens of the world who happen to use US-based Internet services.

As part of the Best Bits civil society coalition that CI co-founded last year, a group of NGOs and individuals from around the world wrote a letter to the United Nations Human Rights Council last week condemning the surveillance as an abuse of human rights.

This letter now has over 300 endorsements, and has been followed up with a letter to the US Congress which was delivered today, and which has over 250 endorsements so far. A key paragraph of the letter to Congress states:

We are also extremely disappointed that, in all the post ‘disclosures’ statements, US authorities have only insisted that there was no access obtained to content related to US citizens, and just their communication meta-data was collected.

There has not been a word on the issue of large-scale access to content related to non US citizens, which constitute an almost certain human rights violation.

The focusing of the US authorities on the difference between treatment of US citizens and non-citizens on an issue which essentially relates to violation of human rights is very problematic.

Human rights are universal, and every government must refrain from violating them for all people, and not merely for its citizens.

We strongly advocate that current and future legal provisions and practices take this fact into due consideration.