ARTICLE 19 has joined 10 leading human rights organisations* in a joint letter to call on States at the UN General Assembly to adopt a strong resolution on privacy in the digital age.
The UN General Assembly (UNGA) is currently considering a critical draft resolution on privacy in the digital age. The resolution, if adopted, will build upon the commitments of States to ensure that their surveillance practices are grounded on international human rights law and the principles of legality, necessity and proportionality.
It has been a year since the UNGA adopted the landmark Resolution 68/167 on the right to privacy in the digital age. That resolution, triggered by the Snowden revelations, led to a report by the Office of the High Commissioner for Human Rights (OHCHR), slamming States’ surveillance powers.
The OHCHR report made clear that, in spite of huge advances in the technical abilities of States to spy on people around the globe, intelligence agencies must still be constrained by international human rights law, and States must ensure private companies are also upholding these principles.
The draft UNGA resolution proposed by Austria, Brazil, Germany, Lichtenstein, Mexico, Norway and Switzerland, builds significantly on the substance of Resolution 68/167 and reiterates many of the conclusions of the OHCHR report. This includes the following key principles:
- Unlawful or arbitrary surveillance of communications or collection of personal data, including metadata, violates the right to privacy and can interfere with the freedom of expression, especially when undertaken on a mass scale;
- Surveillance must only be conducted on the basis of a legal framework that is publicly accessible, clear, precise, comprehensive, and non-discriminatory;
- Any interference with the right to privacy must be necessary and proportionate to the pursuance of legitimate aims and not impair the essence of the right;
- Surveillance that involves a State’s exercise of power or effective control over personal data, communications, or communications infrastructure, regardless of its location, engages its human rights obligations relating to the right to privacy;
- The human rights obligations of a State regarding the right to privacy extend to the exercise of its regulatory jurisdiction over private parties that physically control data, regardless of its location; and,
- Individuals whose right to privacy has been violated as a consequence of surveillance must have access to an effective remedy without discrimination.
Crucially, the draft resolution also identifies the creation of a UN Special Rapporteur on the right to privacy as a next step to advance States’ understanding of international law in this complex area.
ARTICLE 19 believes it is important that the UN Human Rights Council takes up the invitation to create a Special Rapporteur on the right to privacy – to clarify international standards and to push States to ensure they respect this right in practice.
The joint letter calls on all States to ensure that the resolution is adopted by the UNGA and retains its strong language. The resolution will be negotiated in the coming weeks at the 69th Session UNGA, and will likely be considered for adoption before the end of the Session on 26 November 2014.
*The signatories to the letter are: Amnesty International, Human Rights Watch, Privacy International, ARTICLE 19, Access, Association for Progressive Communications, American Civil Liberties Union, Center for Democracy and Technology, Electronic Frontier Foundation, International Commission of Jurists, and World Wide Wed Foundation.