Surveillance and international human rights law

Event report

[Read more session reports and live updates from the 11th Internet Governance Forum]

The session about surveillance and international human rights law, gathered experts from various organisations in order to discuss current issues and practices about surveillance worldwide.  

Mr Amos Toh, Legal Advisor to the UN Special Rapporteur on Freedom of Expression, started with elaborating the difference between freedom of opinion (article 19.1. of International Convent of Civil and Political Rights – ICCPR) that is absolute, and freedom of expression with respect to communication surveillance (articles 19.2. and 19.3. of ICCPR) that can be limited under certain conditions, these conditions are contained in the three-part test. He first elaborated that provided by law requires not just a piece of legislation but also for the law to be reasonably clear and precise about the conditions for surveillance. Moreover, with respect to necessity and proportionality, he emphasised that there must be an immediate connection between the surveillance and the legitimate aim. In the end, he concluded with the question of how we can translate these norms into concrete actions and what UN bodies can do to improve their work and support local initiatives.

Aja Jack, policy Director at LSFC, continued this discussion by presenting the research that his organisation did in India, where they analysed how surveillance is conducted in India through implementation of the three-part test. On the question of the laws in place, he mentioned that there are laws, but that they are not precise enough. As a curiosity, he mentioned that the Indian constitution does not recognise the right to privacy.  Furthermore, the reasons for surveillance are broadly interpreted, and on average every month about 9 000 orders of surveillance are issued by one particular authority. Moreover, there is no judicial supervision and all surveillance processes are conducted within the government. Finally, there is no transparency about these processes. 

Moving forward, Mr Peter Kimpian, of the Data Protection Unit from the Council of Europe data protection unit, gave a brief overview of the European court of human rights (ECHR) case law in regards to surveillance and the standards established in it. He emphasised the difference between the interests and rights, and therefore the necessity of balance, that must be achieved in regard to intrusion and interests. He elaborated in detail the requirements of the three-part test, through the case law of ECHR.

Katitza Rodriguez, International Rights Director, Electronic Frontier Foundation (EFF), presented the study that EFF did in Latin America about the state of play in surveillance. She suggested that it is necessary to create robust modern privacy laws that include strong safeguards, to have judges who are independent and have wide knowledge about ICT and to create oversight mechanisms that will allow the general public to be introduced to this topic. Speaking about the legality principles, they found that many states widely authorise wire-tapping and in Columbia, one does not even need court approval for it. In addition, they concluded that there is a very strong culture of secrecy in Latin America so many states do not publish information about surveillance technologies that they use or comply with requests based on the freedom of information law. That is why mechanisms that enable public oversight are of essence.

Finally, Luis Fernando García, Director at R3D, spoke about problems associated with surveillance through a recent case law in Mexico and about a telecommunication law that was too vague. In order to see the effect of this law, its organisation submitted more than 600 information requests. Based on this law, the authorities that do not have the power to use surveillance were granted with this right, 99% of all access to user data happened without a judicial warrant and telecommunication companies never denied access for surveillance. Thanks to the litigation that they carried out, the Supreme Court established very clearly who can use surveillance and that one always needs a warrant, except in an emergency system that has been established in the law.

During the question and answer part of the session, the participants reaffirmed the main issues raised during the session that were related to the accountability, institution oversight and especially public oversight, meaningful transparency, right to notification, etc. These are some of the most important challenges that need to be addressed in the coming period in order to establish a high level of protection of fundamental human rights, such as the freedom of expression and right to privacy. 

by Adriana Minović