Bold Step on Privacy and Digital Rights

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http://justsecurity.org/24458/bold-step-privacy-digital-rights/

Political and diplomatic tussles over surveillance programs and digital hacking in the US, Germany, Brazil, China, and beyond show just how hard it is going to be to protect privacy in the digital age. But on July 3, UN Human Rights Council members seized the opportunity to put much-needed focus on the increasingly imperiled right to privacy, by appointing Joseph Cannataci to serve as the first UN Special Rapporteur on the Right to Privacy.

Cannataci, an internationally recognized expert on privacy, data protection, and information technology, is mandated to explore the implications of widespread adoption of digital technology for privacy and how the erosion of privacy undermines fundamental freedoms and democracy. Here is why this mandate on privacy matters so vitally to human rights defenders.

Rapid expansion of Internet infrastructure that crosses international borders and exponential adoption of digital technology have brought profound societal change and disruption. But lack of clarity on how to apply existing international human rights law in this globalized digital context has significantly undermined respect for universal human rights.

The Internet in many ways has been a boon to the exercise of human rights. Social media now shape human rights advocacy and political debates about rights around the world. Space for civil society opens up when activists are able to circumvent government monopolies over the dissemination of information. And human rights defenders’ capacities are enhanced when they use the Internet to organize or turn to social media to build public awareness and to put pressure on rights violators and abusers.

But while advancement in digital technology has had many positive effects on the exercise of freedom, the inexorable move toward the digitization of everything has also meant that governments have an enhanced ability to monitor citizens’ movements, to censor speech, to block or filter access to information, and to track communications. Human rights defenders increasingly face threats, harassment, and insecurity as a result of digital surveillance and collection of their personal data.

Aside from enhancing the repressive powers of governments, global communications technology and the digitization of all aspects of social life have brought new urgency to concerns about how to protect the right to privacy for consumers, journalists, lawyers, and citizens.

But for human rights defenders in particular, safety and the basic ability to do their work is at stake. Defenders often delve into problems or raise issues that governments would rather keep hidden. So when everything activists say or do can be intercepted and monitored, it has a chilling effect on what they feel free to say, where they feel free to go, and with whom they are able to meet. This goes to the heart of human rights advocacy and activism.

The special rapporteur has the potential to make a real difference for human rights protection. Cannataci is charged with interpreting, applying, and extending existing international law into new areas where privacy, freedom of expression, and other human rights interact in the digital context. He should use his mandate to focus global attention on factors that facilitate overbroad surveillance, including new reliance of governments on private sector data collection. And he should help articulate and develop best practices for governments and the private sector to responsibly protect personal information and address digital vulnerabilities.

The current lack of transparency and coherence, in both private sector and government data collection and retention practices, is deeply problematic for human rights protection and has direct bearing on the obligations of governments to protect and respect privacy both at home and abroad. Cannataci can help bring greater transparency and accountability in this realm.

At present, private utilities and other companies around the world vary widely in what data they retain, and their practices in many instances affect or determine what governments are able to collect and monitor. The special rapporteur’s mandate includes assessing private sector responsibilities to respect human rights under the UN Guiding Principles for Business and Human Rights in the specific context of information and communication technology. The rapporteur’s work in this area also may extend the impact of the Global Network Initiative, an alliance of companies, nongovernmental organizations, investors, and academics that developed a set of standards for human rights protection relating to information and communication technology.

In sum, the new UN expert is empowered to systematically review government policies and laws on interception of digital communications and collection of personal data; to identify actions that intrude on privacy without compelling justification; to assist governments in developing best practices to bring global surveillance under the rule of law; to further articulate private sector responsibilities to respect human rights; and to help ensure that national procedures and laws are consistent with international human rights law obligations. If Cannataci fulfills his mandate, he will make a significant difference to the protection of human rights in the digital context.

Protecting privacy is important for everyone, but for human rights defenders, their lives and work depend upon it. Dedicated attention to privacy in the global digital context has been urgently needed. By establishing clearer international norms on the right to privacy, the new UN expert will help human rights advocates and everyone else make the most of what digital technology has to offer.

Camilla Wood

UK based Legal Aid Lawyer

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