How the legality of mass surveillance programs would be assessed within the context of international human rights law and major human rights treaties
The International Covenant on Civil and Political Rights (ICCPR) and European Convention on Human Rights (ECHR) protect the right to privacy. Drawing almost verbatim on Article 12 of the Universal Declaration of Human Rights (UDHR), Article 17 ICCPR provides that:
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
Article 8 ECHR on the other hand stipulates that:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of rights and freedoms of others.
Article V of the American Declaration of the Rights and Duties of Man provides that:
‘[e]very person has the right to the protection of the law against abusive attacks upon his honor, his reputation, and his private and family life.’
Civil Society organisations including Privacy International, Access and the Electronic Frontier Foundation, drew up 13 Principles from human rights law that would apply to both domestic and extraterritorial surveillance:
- LEGALITY: Any limitation to human rights must be prescribed by law. The State must not adopt or implement a measure that interferes with these rights in the absence of an existing publicly available legislative act, which meets a standard of clarity and precision that is sufficient to ensure that individuals have advance notice of and can foresee its application. Given the rate of technological changes, laws that limit human rights should be subject to periodic review by means of a participatory legislative or regulatory process.
- LEGITIMATE AIM: Laws should only permit Communications Surveillance by specified State authorities to achieve a legitimate aim that corresponds to a predominantly important legal interest that is necessary in a democratic society. Any measure must not be applied in a manner that discriminates on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
- NECESSITY: Surveillance laws, regulations, activities, powers or authorities must be limited to those which are strictly and demonstrably necessary to achieve a legitimate aim. Communications Surveillance must only be conducted when it is the only means of achieving a legitimate aim, or, when there are multiple means, it is the means least likely to infringe upon human rights. The onus of establishing this justification is always on the State.
- ADEQUACY: Any instance of Communications Surveillance authorised by law must be appropriate to fulfil the specific Legitimate Aim identified.
- PROPORTIONALITY: Communications surveillance should be regarded as a highly intrusive act that interferes with human rights threatening the foundations of a democratic society. Decisions about Communications Surveillance must consider the sensitivity of the information accessed and the severity of the infringement on human rights and other competing interests. This requires a State, at a minimum, to establish the following to a Competent Judicial Authority, prior to conducting Communications Surveillance for the purposes of enforcing law, protecting national security, or gathering intelligence:
- there is a high degree of probability that a serious crime or specified threat to a Legitimate Aim has been or will be carried out, and’
- there is a high degree of probability that evidence of relevant and material to such a serious crime or specific threat to a Legitimate Aim would be obtained by accessing the Protected Information sought, and;
- other less invasive techniques have been exhausted or would be futile, such that the techniques used is the least invasive option, and;
- other less invasive techniques have been exhausted or would be futile, such that the techniques used is the least invasive option, and;
- information accessed will be confined to that which is relevant and material to the serious crime or specific threat to a Legitimate Aim alleged; and
- any excess information collected will not be retained, but instead will be promptly destroyed or returned; and
- information will be accessed only by the specified authority and only used for the purpose and duration for which authorisation was given.
- that the surveillance activities requested and techniques proposed do not undermine the essence of the right to privacy or of fundamental freedoms.
- COMPETENT JUDICIAL AUTHORITY: Determinations related to Communications Surveillance must be made by a competent judicial authority that is impartial and independent. The authority must be:
- separate and independent from the authorities conducting Communications Surveillance;
- conversant in issues related to and competent to make judicial decisions about the legality of Communications Surveillance, the technologies used and human rights; and
- have adequate resources in exercising the functions assigned to them.
- DUE PROCESS: Due process requires that States respect and guarantee individuals’ human rights by ensuring that lawful procedures that govern any interference with human rights are properly enumerated in law, consistently practiced, and available to the general public. Specifically in the determination of his or her human rights, everyone is entitled to a fair and public hearing within a reasonable time by an independent, competent and impartial tribunal established by law, except in cases of emergency when there is imminent risk of danger to human life. In such instances, a retroactive authorisation must be sought within a reasonably practicable time period. Mere risk of flight or destruction of evidence shall never be considered as sufficient to justify retroactive authorisation.
- USER NOTIFICATION: Those whose communications are being surveilled should be notified of a decision authorising Communications Surveillance with enough time and information to enable them to challenge the decision or seek other remedies and should have access to the materials presented in support of the application for authorisation. Delay in notification is only justified in the following circumstance:
- Notification would seriously jeopardize the purpose for which the Communications Surveillance is authorised, or there is an imminent risk of danger to human life; and
- Authorisation to delay notification is granted by a Competent Judicial Authority; and
- The User affected is notified as soon as the risk is lifted as determined by a Competent Judicial Authority.
The obligation to give notice rests with the State, but communications service providers should be free to notify individuals of the Communications Surveillance, voluntarily or upon request.
- TRANSPARENCY: States should be transparent about the use and scope of Communications Surveillance laws, regulations, activities, powers or authorities. They should publish, at a minimum, aggregate information on the specific number of requests approved and rejected, a disaggregation of the requests by service provider and by investigation authority, type and purpose and the specific number of individuals affected by each. States should provide individuals with sufficient information to enable them to fully comprehend the scope, nature, and application of the laws permitting Communications Surveillance. States should not interfere with service providers in their efforts to publish the procedures they apply when assessing and complying with State requests for Communications Surveillance, adhere to those procedures, and publish records of State requests for Communications Surveillance.
- PUBLIC OVERSIGHT: States should establish independent oversight mechanisms to ensure transparency and accountability of Communications Surveillance. Oversight mechanisms should have the authority: to access all potentially relevant information about State actions, including, where appropriate, access to secret or classified information; to assess whether the State is making legitimate use of its lawful capabilities; to evaluate whether the State has been comprehensively and accurately publishing information about the use and scope of Communications Surveillance techniques and powers in accordance with its Transparency obligations; to publish periodic reports and other information relevant to Communications Surveillance; and to make public determinations as to the lawfulness of those actions, including the extent to which they comply with these Principles. Independent oversight mechanisms should be established in addition to any oversight already provided through another branch of government.
- INTEGRITY OF COMMUNICATIONS AND SYSTEMS: In order to ensure the integrity, security and privacy of communications systems, and in recognition of the fact that compromising security for State purposes almost always compromises security more generally, States should not compel service providers or hardware or software vendors to build surveillance or monitoring capability into their systems, or to collect or retain particular information purely for State Communications Surveillance purposes. A priori data retention or collection should never be required of service providers. Individuals have the right to express themselves anonymously; States should therefore refrain from compelling the identification of users.
- SAFEGUARDS FOR INTERNATIONAL COOPERATION: In response to changes in the flows of information, and in communications technologies and services, States may need to seek assistance from foreign service providers and States. Accordingly, the mutual legal assistance treaties (MLATs) and other agreements entered into by States should ensure that, where the laws of more than one state could apply to Communications Surveillance, the available standard with the higher level of protection for individuals is applied. Where States seek assistance for law enforcement purposes, the principle of dual criminality should be applied. States may not use mutual legal assistance processes and foreign requests for Protected Information to circumvent domestic legal restrictions on Communications Surveillance. Mutual legal assistance processes and other agreements should be clearly documented, publicly available, and subject to guarantees of procedural fairness.
- SAFEGUARDS AGAINST ILLEGITIMATE ACCESS AND RIGHT TO EFFECTIVE REMEDY: States should enact legislation criminalising illegal Communications Surveillance by public or private actors. The law should provide sufficient and significant civil and criminal penalties, protections for whistleblowers, and avenues for redress by those affected. Laws should stipulate that any information obtained in a manner that is inconsistent with these principles is inadmissible as evidence or otherwise not considered in any proceeding, as is any evidence derivative of such information. States should also enact laws providing that, after material obtained through Communications Surveillance has been used for the purpose for which information was given, the material must not be retained, but instead be destroyed or returned to those affected.
Litigation in domestic courts in states where human rights treaties are directly applicable or before international judicial and quasi-judicial bodies. Some of these cases are likely to proceed to an examination of the merits, particularly in Europe, where standing, state secrets and political question doctrines are either non-existence or are not as onerous for applicants to overcome as they are in the Untied States.
Clapper v Amnesty International USA, 132 S.Ct 2431 (2013)
Holding by 5 votes to 4 that a real likelihood that individuals would be subjected t surveillance measures, rather than proof that such measures were actually taken, was not sufficient for standing, which could not be speculative.
Big Brother Watch and Others v United Kingdom, App.No.58170/13
Big Brother Watch, Open Rights Group, English PEN and internet campaigner Constanze Kurz are challenging the UK government’s surveillance of our data at the European Court of Human Rights – and we need your support. The revelations that the government routinely taps, stores and sifts through our internet data have demonstrated an astonishing lack of legal protection for our rights, especially privacy.
Read More: https://www.privacynotprism.org.uk/
Privacy International v. United Kingdom
Privacy International in September 2014 filed a legal challenge in Europe’s top human rights court demanding the release of secret documents detailing the spying agreements between the United States, United Kingdom, Canada, Australia, and New Zealand.
Read More: https://www.privacyinternational.org/node/83
Sources and resources
International Covenant on Civil and Political Rights [ICCPR G.A.re.2200A (XXI), 21 U.N. GAOR Supp. (No.16) at 52, U.N.Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar.23 , 1976; [European] Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S 222, entered into force Sept.3, 1953. Australia ratified the ICCPR on 13 August 1980; Canada on 19 May 1976; France on 4 November 1980; New Zealand on 28 December 1978; Russia on 16 October 1973; the United Kingdom on 20 May 1976; the United States on 8 June 1992. China signed the ICCPR on 5 October 1998 but has not yet become a party.
Five Eyes: is an alliance of five English-speaking countries – the United States, the United Kingdom, Australia, Canada and New Zealand, focusing mainly on co-operating in the domain of signals intelligence.
Liberty and Security in a Changing World: Report and Recommendations of the President’s Review Group on Intelligence and Communications Technology: https://www.whitehouse.gov/sites/default/files/docs/2013-12-12_rg_final_report.pdf
Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Martin Scheinin, UN Doc, 28.12.2009
Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Martin Scheinin, UN Doc, 17.05.2010
Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue* UN Doc A/HRC/23/40 17.04.2013