The top United Nations human rights official today
warned of the “disturbing” lack of transparency in governmental
surveillance policies and practices, “including de facto coercion of
private sector companies to provide sweeping access to information and
data relating to private individuals without the latter’s knowledge or
consent.”
“This is severely hindering efforts to ensure accountability for
any resulting human rights violations, or even to make us aware that
such violations are taking place, despite a clear international legal
framework laying down Governments’ obligations to protect our right to
privacy,” UN High Commissioner for Human Rights, Navi Pillay said in Geneva today.
Introducing a report compiled by her Office entitled, The Right to Privacy in the Digital Age, she stressed the need for vigilance and procedural safeguards against governmental surveillance programmes.
“The onus is on the State to demonstrate that such interference
is neither arbitrary nor unlawful,” Ms. Pillay said, noting that article
17 of the International Covenant on Civil and Political Rights states
that “no one shall be subjected to arbitrary or unlawful interference
with his or her privacy, family, home or correspondence, nor to unlawful
attacks on his or her honour and reputation.”
According
to the report, to be presented this October to the Human Rights Council
and the UN General Assembly, governmental mass surveillance is
“emerging as a dangerous habit rather than an exceptional measure” and
practices in many States reveal “a lack of adequate national legislation
and/or enforcement, weak procedural safeguards, and ineffective
oversight.”
The High Commissioner’s report points out that the secret nature
of specific surveillance powers brings with it a greater risk of
arbitrary exercise of discretion which, in turn, demands greater
precision in the rule governing the exercise of discretion, as well as
additional oversight. Therefore, States must establish independent
methods to monitor such surveillance one that include administrative,
judicial and parliamentary branches of government...
“The involvement of all branches of Government in the oversight
in surveillance programmes, as well as of an independent civilian
oversight agency, is essential to ensure the effective protection of the
law,” the report states, noting that when conducted in compliance with
the law, including international human rights law, surveillance can be
effective for legitimate law enforcement or intelligence purposes.
On the role of the private sector, the report points to strong
evidence of a growing reliance by Governments on enterprises to conduct
and facilitate digital surveillance and warns that a company that
supplies data to the State “risks being complicit in or otherwise
involved with human rights abuses.”
When faced with Government demands for access to data,
enterprises are expected to honour the principles of human rights. This
can mean interpreting such demands as narrowly as possible, seeking
clarification from a Government with regard to the scope and legal
foundation for the demand, requiring a court order before meeting
government requests for data, and communicating transparently with users
about risks and compliance with the demands.
“The complexity of the challenges to the right to privacy in this
rapidly and dramatically evolving digital age is going to require
constant scrutiny and dialogue between all key sectors,” Ms. Pillay
said, adding that at stake are some incredibly important principles
which go right to the core of each and every individual’s rights.
