A Collection of Reports on Privacy From the UN Human Rights Council’s 34th Session
The 34th session of Human Rights Council (“HRC”) began on 27 February. The session will consider a number of reports, debates, and negotiations and will continue for four weeks. The session will end on 24 March, with the adoption of resolutions and decisions. The Council’s website provides details as well as link to webcast of public sessions.
The right to privacy is expected to take centre stage in some of these debates. In particular, it will be dominant around the consideration of the UN Special Rapporteur on the right to privacy’s report, which due to be debated on 7 March. But it is not only the Special Rapporteur’s report that deals with the issue of privacy in this Council’s session.
Many reports to be discussed at the 34th Council session address States’ responsibilities to implement and review their legal frameworks in order to make them consistent with international standards regarding the right to privacy and data protection, particularly in the context of state surveillance.
The following is an overview of some of the reports (other than the report of the UN Special Rapporteur on the right to privacy) presented at the Council’s session, which specifically touch upon the issue.
Full list of reports is available here.
COUNTER-TERRORISM
Governments continue to justify surveillance measures to combat terrorism. Lawful surveillance can be a useful tool to target criminal and terrorist acts. However, as noted in a growing number of human rights experts’ reports, surveillance must comply with international and domestic laws, notably by meeting the principle of legality, necessity, and proportionality. Beyond the UN Special Rapporteur on the right to privacy, two reports address these issues at this session of the Council:
- Report on negative effects of terrorism on the enjoyment of all human rights and fundamental freedoms, from the United Nations High Commissioner for Human Rights (A/HRC/34/30)
III. Human rights challenges in the context of terrorism and counter-terrorism
A. Negative effects of terrorism on the enjoyment of human rights and fundamental freedoms
4. Impact on the right to privacy
32. Digital communications technologies can be, and have been, used by individuals for criminal objectives, including recruitment for and the financing and commission of terrorist acts. As such, the lawful, targeted surveillance of digital communication by a State may constitute a necessary and effective measure for intelligence and/or law enforcement entities when conducted in compliance with international and domestic law, including respect for the right to privacy as reflected in international human rights instruments.
33. Governments frequently justify expansive digital communications surveillance programmes, however, on the grounds of the risks posed by terrorism. In this regard, the High Commissioner for Human Rights, special procedure mandate holders and treaty bodies have expressed serious concern about the potential for arbitrary or unlawful interference in the right to privacy that such programmes have raised. One contribution to the present report noted that the use of information and communications technologies by terrorist organizations for recruitment purposes does not diminish the importance of States’ obligations to respect the right to privacy as enshrined in international law.
34. With regard to draft legislation on intelligence and security services, one contribution to the present report criticized the fact that, in one jurisdiction, the necessity of extending the power of untargeted interception of telecommunications and other means of data transfer had not been sufficiently demonstrated; the draft legislation provided for prior authorization of interception and other surveillance measures by a Cabinet minister, not by an independent body or judge; and the supervisory body was not granted the power to take binding decisions on the legality and proportionality of on-going surveillance and interception operations. Concerning the bill on investigatory powers in another country, one contribution suggested that its safeguards be improved since the unlawful use of investigatory powers may not be subjected to sufficient scrutiny under the current draft because those subject to surveillance would often be unaware of it and thus not in a position to be able to make a complaint. In another contribution, concern was expressed at national legislation introduced in 2015 to combat the movement of foreign fighters, which authorizes the defence intelligence service to process information on residents of that country and allows for interference in private communications of individuals who have a lower suspicion threshold than what the security and intelligence service of the national police would need to meet within the criminal justice system.
2. Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism (A/HRC/34/61)
III. Recent developments and thematic updates
F. Mass digital surveillance for counter-terrorism purposes
30. The Special Rapporteur notes that the right to digital privacy addressed in his report to the General Assembly (A/69/397) has become a priority concern for the United Nations. In particular, the General Assembly, in resolution 71/199, addressed the right to privacy in all of its components and recognized its pivotal role in relation to other rights. A Special Rapporteur on the right to privacy has been appointed by the Human Rights Council, and issues of digital privacy are now regularly addressed by other human rights procedures, treaty bodies and mechanisms.
31. Domestic and regional courts have also increasingly been called upon to consider issues of privacy and online surveillance. The Court of Justice of the European Union has held that access on a generalized basis to the content of electronic communications compromises the “essence” of the fundamental right to respect for private life. It has also ruled that mandatory retention of metadata and national legislation which provides for “general and indiscriminate retention of all traffic and location data of all subscribers and registered users relating to all means of electronic communication” are contrary to European Union law. The European Court of Human Rights requires demonstrable “reasonable suspicion” in the context of bulk interception in order for a proportionality test to be performed.
33. These limitations have not, however, removed the serious and continuing concerns around extraterritorial mass surveillance programmes, and proliferation of laws that authorize asymmetrical protection regimes for nationals and non-nationals. Such laws exist in Germany, France and the United States. The Special Rapporteur recalls that differential treatment of nationals and non-nationals, and of those within or outside a State’s jurisdiction, is incompatible with the principle of non-discrimination, which is a key constituent of any proportionality assessment (see CCPR/C/GBR/CO/7, para 24 (a) and CCPR/C/USA/CO/4, para. 24 (a).
34. Progress is still required to ensure that adequate procedural safeguards and oversight of interception and surveillance are in place. In particular, prior judicial authorization of surveillance should be the norm. The Special Rapporteur welcomes the ruling of the Court of Justice of the European Union that access to retained data must be “subject to prior review by a court or an independent administrative authority” except in cases of “validly established urgency”, and that the affected persons should be notified that access has been given to their retained data as soon as the notification is no longer liable to jeopardize investigations.
35. On the right to an effective remedy, the Special Rapporteur notes the increasing number of court cases and parliamentary and other inquiries that are taking place into surveillance activities of intelligence agencies. He regrets, however, that secrecy and lack of transparency continue to be impediments to meaningful accountability and redress for victims. The Special Rapporteur welcomes important case law of the European Court of Human Rights that reaffirms the Court’s broad approach to standing, and thus enhances the right to an effective remedy in the context of secret surveillance measures.
36. The fact that surveillance powers are contained in public legislation is crucial to satisfying the principle of legality. The Special Rapporteur thus welcomes efforts by States to place intrusive surveillance regimes on a statutory footing, so that they can be subjected to public and parliamentary debate. However, publicly available primary legislation is not, in itself, sufficient to ensure the compatibility of those regimes with international human rights law. Necessity, proportionality and non-discrimination must also be taken into account, along with the establishment of safeguards against arbitrariness, independent oversight and routes for redress. A significant number of States have recently adopted explicit surveillance legislation to address concerns about the legality of the operations of their security services. In this context, the Special Rapporteur gave a qualified welcome to the introduction of the United Kingdom Investigatory Powers Act 2016 on the ground that it at least made explicit and public provision for digital surveillance in primary legislation that was amenable to parliamentary debate. However, he remains concerned at the scope of some of the Act’s provisions. It enshrines very broad targeted and bulk powers, including bulk interception, bulk acquisition, bulk equipment interference, “thematic” warrants and mandatory retention of communications and of Internet connection records, which can be used nationally and extraterritorially, often without adequate judicial supervision. Similarly, in France, a 2015 law gives the Government very broad powers to intercept electronic surveillance in the absence of judicial oversight and requires telecommunications carriers and Internet service providers to install “black boxes” on their networks. The legislation has been criticized as providing the intelligence services with excessive, vaguely defined and highly intrusive surveillance powers, without adequate mechanisms of control and oversight (see CCPR/C/FRA/CO/5, para. 12). Similar legislation has been adopted, or is in the process of adoption, in many other countries.
MIGRATION
In the annual report of the UN High Commissioner for Human Rights, the focus is on the “protracted global human rights crisis, including in relation to deaths and suffering from large-scale movements of people continued to rise”. Despite fewer migrants arrived in Europe “the death toll from attempted migration across the Mediterranean Sea surpassed that of previous years”.
In view of the prolonged migration emergency a report suggest principles and practical guidelines to protect migrants’ human rights in vulnerable situations. The right to privacy should not be foregone, and the need to collect migrants’ data shall not overcome the requirement of ensuring the right to privacy and protection of personal data.
Principles and practical guidance on the protection of the human rights of migrants in vulnerable situations within large and/or mixed movements, on the basis of existing legal norms. (A/HRC/34/CRP.1)
L. Principle 12: Ensure the enjoyment of the highest attainable standard of physical and mental health of all migrants
Need to ensure the right to privacy while granting them the access to healthcare
M. Principle 13: Safeguard the right of migrants to an adequate standard of living
Need to guarantee right to privacy when considering access to shelter and facilities
P. Principle 16: Uphold migrants’ right to information
Need to protect online privacy as vital prerequisite to the right to information
S. Principle 19: Improve the collection of disaggregated data on the human rights situation of migrants, while ensuring the right to privacy and protection of personal data
Balance the need of collecting data for research purposes with the need to protect migrants’ privacy. Data collection should be perpetrated in accordance with international standards and best practice guidelines on data protection and privacy.
A HUMAN-RIGHTS-BASED APPROACH TO DATA
Collection and analysis of data are seen as fundamental to support the realisation of human rights and the sustainable development goals. However, such collection of data must respect and protect the right to privacy.
Question of the realization in all countries of economic, social and cultural rights — Report of the Secretary-General (A/HRC/34/25)
V. A human rights-based approach to data
30. At the same time, it will be important to ensure that the collection and analysis of data on the implementation of the Sustainable Development Goals respects human rights principles, given that collecting and disaggregating (or not disaggregating) data involve critical decisions that can pose substantial risks to the protection of the rights of the populations concerned. Those decisions need to be taken through appropriate processes, upholding human rights norms and principles, including:
(…)
(e) Privacy. Respecting the right to privacy and confidentiality of individual identification is also essential, particularly with regard to privacy concerns relating to big data and surveillance; strategies for preventing and mitigating data leaks or security breaches should also be put in place;
COUNTRY-SPECIFIC CONCERNS
A number of country reports address the standards of protection of the right to privacy. For example, the review of some countries under the Universal Periodic Review identified concerns related to privacy:
- Venezuela
Report of the Working Group on the Universal Periodic Review — Bolivarian Republic of Venezuela (A/HRC/34/6)
Conclusions and/or recommendations
133.175 Guarantee the right to privacy of private and personal communications according to international standards (Kenya);
133.176 Take the necessary steps to ensure that all operations of intelligence agencies are monitored by an independent oversight mechanism (Liechtenstein);
133.179 Bring all legislation concerning communication surveillance in line with international human rights standards and, especially, ensure that all communications surveillance are tested for necessity and proportionality (Liechtenstein);
133.254 Regularly publish updated socioeconomic data, including on health and nutrition, especially by strengthening existing national instruments, such as the Venezuelan system of food and nutrition surveillance (Switzerland);
2. Zimbabwe
Report of the Working Group on the Universal Periodic Review — Zimbabwe (A/HRC/34/8)
Conclusions and/or recommendations
132.62 Ensure that its legislation is in line with the new Constitution and the rights concerning freedom of expression and freedom of media therein, repeal the Access to Information and Protection of Privacy Act and the Public Order and Security Act, and license independent broadcasters (Sweden);
132.63 Review and update the Public Order and Security Act and the Private Voluntary Organizations Act to be in line with international human rights standards (Norway);
132.64 Immediately publish a timeline ensuring that legislation, including the Public Order and Security Act, the Access to Information and Protection of Privacy Act and relevant electoral legislation, will be aligned with the Constitution before the end of the eighth session of Parliament (United Kingdom of Great Britain and Northern Ireland);
3. Sri Lanka
Reporting on his visit to Sri Lanka, the UN Special Rapporteur on torture raised concerns about the surveillance measures adopted under the Prevention of Terrorism Act, including for their impact on the right to privacy.
Addendum — Mission to Sri Lanka (A/HRC/34/54/Add.2)
IV. Assessment of the situation
A. Torture and ill-treatment
3. Rehabilitation of detainees under the Prevention of Terrorism Act
40. The Special Rapporteur is concerned that rehabilitated persons continue to be kept under surveillance by government agents years after their release, and are frequently harassed and threatened. They are often still forced to report to a police station or military post at regular intervals, where they are frequently threatened and ill-treated and, in some instances, arbitrarily detained and subjected to torture, including sexual torture. Harassment sometimes extends to civil society organizations that provide counselling and other services to rehabilitated persons.
4. Surveillance and intimidation
42. Owing to the heavy militarization that still exists in the North and East of the country, surveillance continues to be used as a tool of control and intimidation. In addition to rehabilitated persons, many former detainees under the Prevention of Terrorism Act and their families, anyone deemed to have had any link to LTTE during the conflict and political and human rights activists remain subject to extensive surveillance and intimidation by the military, intelligence and police forces. While the extent and level of this practice have dropped compared to the early post-conflict period, systematic surveillance and intimidation continues, sometimes constituting ill-treatment.
V. Conclusions and recommendations
B. Recommendations
116. Regarding the legal framework, the Special Rapporteur recommends that the Government:
(…)
b) Review any draft legislation to replace the Prevention of Terrorism Act (national security act, state intelligence services act and prevention of organized crimes act) to ensure safeguards against arbitrary arrest and torture or cruel, inhuman or degrading treatment; provisions for access to legal counsel from the moment of deprivation of liberty, strong judicial overview of law enforcement and security agencies and protections for the privacy rights of citizens; and that there is a timely, robust and transparent national debate on the bills that is inclusive of all civil society.
119. Regarding institutional reform, the Special Rapporteur recommends that the Government:
(…)
(i) Prioritize demilitarization and dismantle the structures that are still in place to conduct surveillance, and build up trust in the community as a step towards reconciliation;
4. Germany
In the report on communications to governments, the Special Rapporteur on human rights defenders noted his concerns on a recent surveillance law in Germany
Report of the Special Rapporteur on the situation of human rights defenders, Michel Forst — Addendum — Observations on communications transmitted to Governments and replies received (A/HRC/34/52/Add.1)
Allegations concerning the draft law “Gesetz zur Ausland-AuslandFernmeldeaufklärung des Bundesnachrichtendienstes” which amends Germany’s existing regulations on the surveillance of communications between non-German citizens.
517. The Special Rapporteur acknowledges the response of the Government of Germany to the communication sent on 21 October 2016. 518. The Special Rapporteur regrets that despite the expressed criticism the draft law was approved by the German Bundestag on 21 October 2016 and by the German Federal Council on 4 November 2016. The law permits the Federal Intelligence Service (BND) to undertake bulk surveillance of non-German citizens and institutions, as well as to collect and process, within Germany, the communications and associated data of non-German citizens without specifying an individual target or associated personal identifier.
520. The Special Rapporteur acknowledges the Government’s response. However, he wishes to remind the Government that the measures undertaken to ensure security in the country should not interfere with fundamental rights and freedoms, such as freedom of expression and right to be protected, inter alia, against arbitrary or unlawful interference with their privacy and correspondence, guaranteed by the ICCPR. While surveillance measures and other restrictions on freedom of expression may be established to protect national security and public order, they must be “necessary” to protect such objectives, and not merely be useful or reasonable. Furthermore, the Government’s argument that the law is aimed at putting ‘in more clear terms the current legal framework’ raises concerns as the conditions for the collection and processing of data are formulated in vague and broad terms. For example, there is no guidance on the nature, scope and degree of severity of the security threats or issues that would trigger the bulk or targeted collection activities authorized under the law. Therefore, it does not comply with the principle that restrictions must also be sufficiently clear, accessible and predictable
5. United Kingdom
In the report on communications to governments, the Special Rapporteur on human rights defenders noted his concerns on a recent surveillance law in the UK.
Report of the Special Rapporteur on the situation of human rights defenders, Michel Forst — Addendum — Observations on communications transmitted to Governments and replies received (A/HRC/34/52/Add.1)
UK. Allegations regarding a number of provisions contained in the draft of “Investigatory Powers Bill” which unduly interfere with the rights to privacy and freedom of opinion and expression, both within and outside the United Kingdom.
585. PR 11/01/2016 UN experts urge review of surveillance bill threatening freedom of expression. 586. The Special Rapporteur acknowledges the receipt of the Government’s reply to the communication sent on 22 December 2015.
587. The Special Rapporteur remains concerned at the draft of “Investigatory Powers Bill”, which despite the expressed criticism has been approved by the United Kingdom House of Lords on 16 November and ratified by Royal Assent on 29 November 2016. The Special Rapporteur recalls that a number of provisions contained in this legislation unduly interfere with the rights to privacy and freedom of opinion and expression, both within and outside the United Kingdom. The bill contains provisions governing the authorisation of warrants to identify “journalistic sources”, warrants for mass surveillance and notices for the retention of data by telecommunications operators. Concern is expressed about the specific provisions of the bill that provide for overly broad exceptions of the right to privacy and freedom of expression without independent oversight and lack sufficiently clear definitions.
588. The Special Rapporteur, in a joint statement dated 11 January 2016 with the UN Special Rapporteurs on freedom of expression and on freedom of peaceful assembly and association, highlighted that the lack of transparency could prevent individuals from knowing they are subject to surveillance. This Bill could ultimately stifle the exercise of fundamental freedoms and exert a deterrent effect on the legitimate exercise of basic rights and the work of human rights defenders and the civil society in general. 589. Stressing the potential for human rights violations, the Special Rapporteur calls upon the Government to conduct a comprehensive review of the Investigatory Powers Bill to ensure its compliance with international human rights law and standards.
