Surveillance industry and human rights

Event report

The side event, co-organised by the Permanent Mission of Canada to the UN Office at Geneva and Amnesty International, addressed the topic of surveillance and its impact on human rights. The event was moderated by Ms Rosemary McCarney (Ambassador, Permanent Mission of Canada to the United Nations Office at Geneva) and specifically focused on the emerging surveillance industry and on the possible ways to create effective regulations to tackle the issue.

Mr Ronald Deibert (Director, the Citizen Lab, Munk School of Global Affairs & Public Policy, University of Toronto) introduced the work of the Citizen Lab as an interdisciplinary research entity which focuses on digital security issues with the aim to provide evidence-based research of public interest. As part of their research, recent reports on commercial spyware stand out. They highlight that the marketing of surveillance technologies is done under the umbrella of national security, which at times becomes a means for targeted attacks on individuals, mainly human rights activists and journalists. The status quo on the matter is featured by a lack of regulation which does not allow effective mechanisms for accountability. Enforcing legal frameworks are needed to tackle this challenge.

Our society is deeply networked and featured by the worldwide growing interconnectivity of ICT devices which are however inherently insecure. In this context, some recent facts have created ironic demonstration effects. First, the Arab Spring in its popular mobilisation fuelled by technology has led autocrats around the world to engage with the private industry to counter possible future similar activities. A second example is represented by the Snowden revelations and one of its unintended effects related to the creation of a blueprint and catalogue of mass surveillance technology. Third, this situation has fostered the rise of a massive cyber-military industrial complex, often outsourced to private actors.

Additionally, this marketplace enables countries which do not have the traditional intelligence capacity to have effective surveillance mechanisms systems; in other words, this new marketplace facilitates the globalisation of authoritarianism. Therefore discussions on regulation need to acknowledge that surveillance topics are always characterised by a high degree of national secrecy. As a result, a strong political is needed to effectively start discussions on how to regulate surveillance.

Ms Danna Ingleton (Deputy Programme Director, Amnesty Tech at Amnesty International) addressed the topic by recalling a targeted surveillance of one of Amnesty International’s employees through Pegasus spyware technology as a means to introduce her remarks on the matter. First, there is a dangerous lack of accountability mechanisms. Indeed, in many cases, while companies claim to respect due diligence principles and to fight crime and terrorism, they also allow targeted attacks on individuals. Additionally, most of the attacks against activists are multi-jurisdictional which strengthen the nature of the legal challenges.

This current lack of legal mechanisms favours impunity and fosters silence on the attacks.

Mr Luis Fernando Garcia Muñoz (Executive Director and Co-Founder, R3D, Red en Defensa de los Derechos Digitales) briefly introduced the work and aims of R3D in preventing targeted surveillance and attacks, as well as providing adequate justice. In regards to this, he underlined three main aspects. First, there is a close relationship between the lack of preventive technical and legal mechanisms and the ability to get justice and to get proof for prosecution processes, due to the inability of detection. Second, the effects are intensively heavy on the people who know they are the victims of targeted surveillance. Third, there is a wide range of people who do not know they are the target of such surveillance and live in a context of constant threat of surveillance and lack of accountability mechanisms. Regulatory processes on the subject should be further implemented but also consider the wide spectrum of specificities of countries using technologies such as the rate of corruption, to cite an example. Such regulations should address the current lack of accountability mechanisms in cases of abuse through, for example, measures against tampering, and create a framework for mandatory registers of targeted individuals by the surveillance machine.

Mr David Kaye (UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression) stressed the crucial role played by civil society organisations as a contribution to the report on the promotion and protection of the right to freedom of opinion and expression. The extent of targeted surveillance of individuals is a global epidemic in some respects which is difficult to property track due to the inherent features of the technology involved. Surveillance activities are increasingly creating a massive interference with privacy with the aim to interfere with the public space. Indeed, the online space can be identified as the current space for massive repression of freedom of expression and free journalism, to cite a few. Therefore, it is not a digital phenomenon but a public space-related issue.

While actions are urgently needed, three main categories can facilitate the development of frameworks and legislations. The first category focuses on countries using the tools in an unlawful way without any control. These countries need to establish rule of law-based standards in which independent judiciaries can be able to provide independent foresight. The second category identifies exporting countries as the subject of attention, addressing the responsibilities of those countries in creating national frameworks and in fostering international ones such as the Wassenaar Arrangement. The third category focuses on private companies, which are currently operating deep in the shadows without constraints. They should be abiding to human rights principles and provide impact assessment, an assessment of end users, as well as clarity on the use and kind of support provided for surveillance technologies. Current practices are indeed featured by ongoing processes of collaboration and repression. Nevertheless, while the current situation is grim and characterised by a set of harm, there are also good opportunities that can be embraced for an impactful work. For instance, public-private engagements following already existing initiatives can foster more responsible frameworks for surveillance activities in compliance with international law and human rights law.