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UN Report Condemns Mass Surveillance

According to a recent report released by the United Nations General Assembly, mass surveillance of the internet by intelligence agencies is “corrosive of online privacy” and threatens to undermine international law. The extensive study, released on October 15, was conducted by Ben Emmerson QC, the UN’s special rapporteur on counter-terrorism.

Bulk vs. Targeted Surveillance

In many ways, this report is a response to the revelations by NSA whistleblower Edward Snowden, on the extent of monitoring carried out by the American NSA, along with the GCHQ in the UK. Emmerson’s study represents a direct challenge to the claims of both governments that their bulk surveillance programs are not only perfectly lawful, but reasonable, in light of terrorist threats.

The study defines mass surveillance as “a systematic interference with the right to respect for the privacy of communications. [As a result,] it is incompatible with existing concepts of privacy for States to collect all communications or metadata all the time indiscriminately.”

Most countries have the technical capability to intercept and monitor calls made on a landline or mobile phone, enabling an individual’s location to be determined, his/her movements to be tracked through cell site analysis and his/her text messages to be read and recorded. A growing number of countries also use malware systems that infiltrate individuals’ computers or smartphones, in order to override settings and monitor activities.

It’s important to make the distinction between targeted and bulk surveillance. The former follows a belief that its subject is involved in a specific act of wrongdoing, while the latter indiscriminately swallows up digital or telephonic communications data. The practice of bulk surveillance permits countries like the US and the UK to have access to an “effectively unlimited number of users.”

Endangering the Privacy of Internet Users

According to the barrister, these government-sanctioned monitoring activities endanger the privacy of “literally every internet user.” He endorses the ability of internet users to mount legal challenges to bulk surveillance programs, commenting, “Bulk access technology is indiscriminately corrosive of online privacy and impinges on the very essence of the right guaranteed by [the UN’s International Covenant on Civil and Political Rights.]” These surveillance programs “pose a direct and ongoing challenge to an established norm of international law.”

According to Article 17 of the covenant, “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 22-page report cautions that the use of mass surveillance technology, through interception programs developed by the NSA and GCHQ, such as PRISM and Tempora, “effectively does away with the right to privacy of communications on the internet altogether.”

Concluding Remarks

In concluding that mass surveillance treads upon core privacy rights, the report primarily focused on the International Covenant on Civil and Political Rights, a treaty enacted in 1966 by the General Assembly, to which all of the members of the Five Eyes alliance are signatories. The US ratified the treaty in 1992.

However, the report also recognized that protecting citizens from terrorist attacks is a vital duty of every state, and the right of privacy is not absolute, as it can be compromised when doing so is “necessary” to serve “compelling” purposes. Emmerson noted, “There may be a compelling counter-terrorism justification for the radical re-evaluation of internet privacy rights that these practices necessitate.”

He was, however, adamant that no such justifications have ever been demonstrated by any member state using mass surveillance. He continues, “The States engaging in mass surveillance have so far failed to provide a detailed and evidence-based public justification for its necessity, and almost no States have enacted explicit domestic legislation to authorize its use.”

Summary

On October 15, Ben Emmerson, the special rapporteur to the UN for counter-terrorism and human rights issued a formal report to the General Assembly on mass surveillance programs. The report harshly criticizes mass electronic surveillance as a clear violation of basic privacy rights guaranteed by multiple treaties and conventions.

CIPP Exam Preparation                                      

In preparation for the Foundations exam, a privacy professional should be comfortable with topics related to this post, including:

  • Elements of personal information (I.B.d.)
  • Modern privacy principles – foundational principles (I.D.a.)
  • Global perspectives overview (II.A.b.)
  • Sectors of privacy law – telecommunications, online privacy, government (II.B.d.-II.B.f.)
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