By Olga Slobodyanyuk – Edited by Jesse Goodwin
The UN Report from the Special Rapporteur on Counter-Terrorism and Human Rights found that government Internet mass surveillance violates Article 17 of the International Covenant on Civil and Political Rights (“ICCPR”) by impinging on individuals’ privacy. The report found that mass surveillance programs such as NSA’s Prism and GCHQ’s Tempora “pose a direct and ongoing challenge to an established norm of international law.”
The entire report can be found here.
Article 17 of the ICCPR states that “no one shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home and correspondence, nor to unlawful attacks on his or her honour and reputation.”
The Special Rapporteur, Ben Emmerson, differentiated between targeted and mass surveillance. Targeted surveillance “depend[s] upon the existence of prior suspicion of the targeted individual or organization,” while mass surveillance allows the “communications of literally every Internet user [to be] potentially open for inspection by intelligence and law enforcement agencies in the States concerned.” The report concluded that mass surveillance “amounts to a systematic interference with the right to respect for the privacy of communications, and requires a correspondingly compelling justification.”
The report stated that the broad justification for mass surveillance—that it can aid counter terrorism violations—is neither reasonable nor lawful. According to Emmerson, “the very essence of the right to the privacy of communication is that infringements must be exceptional, and justified on a case-by-case basis.”Although the report recognized that the right of privacy is not absolute, it found that not a single state has presented “detailed and evidence-based public justification” for mass surveillance. Moreover, the report found that “almost no States have enacted explicit domestic legislation to authorize its use.” It urged states to revise laws regulating surveillance to bring them in line with international human rights law. Additionally, to combat the dangers of mass surveillance, the report suggested permitting every Internet user legal standing to challenge these programs.
In addition, the UN report warned that permitting mass surveillance in its current form may lead to “purpose creep,” which would allow measures justified for counter terrorism to be used by governments for less weighty public interest purposes.
The report soundly rejected the premise that government mass surveillance is justified when citizens of the surveilling country are given special protection, finding it “a separate violation of international treaties” since “states are legally obliged to afford the same privacy protection for nationals and non-nationals and for those within and outside their jurisdiction.” This argument about special protections is often used by NSA defenders, reports The Intercept. The report also rejected the argument that anything published online should be considered in the public domain.
According to Glenn Greenwald on The Intercept, the report’s “rejection of the ‘terrorism’ justification for mass surveillance as devoid of evidence echoes virtually every other formal investigation into these programs.” The Guardian and RawStory provide further details and background about the report. AccessNow criticizes some of Emmerson’s conclusions, but praises the report overall.