UN Human Rights Report Finds Significant Harm, Possible Illegality, In Mass Surveillance

United Nations High Commissioner for Human Rights Navi Pillay today released a report criticising government mass surveillance, including the coercion of companies to release individuals’ information without their knowledge or consent. This activity is “severely hindering” accountability in human rights violations, and that governments must prove the legality of their actions, she said.

The Office of the High Commissioner for Human Rights (OHCHR) said studies reveal a “disturbing” lack of transparency on government surveillance policies and practices.

“This,” she said, “is severely hindering efforts to ensure accountability for any resulting human rights violations, or even to make us aware that such violations are taking place, despite a clear international legal framework laying down governments’ obligations to protect our right to privacy, and other related human rights.”

The report, entitled “The Right to Privacy in the Digital Age” [pdf], arose from a request by the December UN General Assembly.

OHCHR said it warns that governmental mass surveillance is “emerging as a dangerous habit rather than an exceptional measure” and that practices in many states reveal “a lack of adequate national legislation and/or enforcement, weak procedural safeguards, and ineffective oversight.”

“The technological platforms upon which global political, economic and social life are increasingly reliant are not only vulnerable to mass surveillance”, the report says, according to OHCHR. “They may actually facilitate it.”

“The very existence of a mass surveillance programme … creates an interference with privacy. The onus is on the State to demonstrate that such interference is neither arbitrary nor unlawful,” Pillay said in the release.

She noted that Article 17 of the International Covenant on Civil and Political Rights states that “no one shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.”

The Covenant, a binding treaty ratified by 167 states, also says that “everyone has the right to the protection of the law against such interference or attacks.”

“Secret rules and secret interpretations – even secret judicial interpretations – of law do not have the necessary qualities of ‘law’,” the report states. “The secret nature of specific surveillance powers brings with it a greater risk of arbitrary exercise of discretion which, in turn, demands greater precision in the rule governing the exercise of discretion, and additional oversight.”

The report focused on the right to privacy, but notes that “other rights are at risk due to mass surveillance, the interception of digital communications and the collection of personal data,” OHCHR said in the release. “These include the freedom of opinion and expression, the freedom of peaceful assembly and association, the right to a family life and the right to health.”

Human Rights Watch responded quickly to the report, saying that it lays out “countries’ obligations to safeguard the right to privacy in the digital age.” The group said the report “identifies gaps in the way countries protect the right to privacy with respect to their digital surveillance practices.”

“The High Commissioner’s report is a critical step to put the right to privacy on firm legal foundation for the digital age,” Cynthia Wong, senior Internet researcher at Human Rights Watch, said in a statement. “With this report, all countries should immediately start to review their digital surveillance practices and bring them in line with international rights standards.”

The report is expected to be presented by the High Commissioner to the Human Rights Council at its next session in September, and to the General Assembly at its 69th session in October.

The OHCHR full report is available here [pdf].

Opening remarks by High Commissioner Navi Pillay at today’s press conference in Geneva, available here.

OHCHR page on the Right to Privacy in the Digital Age is here.