UN Rapporteur For Privacy Rebuffed On Surveillance Oversight Negotiations

The United States, China and the European Union were unanimous yesterday in their rejection of international consultations for a possible legal instrument on government-led surveillance and privacy. During the 19th meeting of the 37th session of the UN Human Rights Council in Geneva, they called a possible legal instrument against uncontrolled cross-border surveillance proposed by the UN Special Rapporteur on Privacy, Joseph Cannataci, “unnecessary.” But Cannataci responded that the problems cannot be ignored.

“We do not favour such an instrument,” said the US representative, as “each country‘s surveillance framework is complex and different.” A new instrument, according to the US, “could be disruptive with unforeseen consequences for public safety and privacy.” Plus, a treaty process oversteps the boundaries of the mandate, the US representative warned, echoing a statement by China on that particular point.

Even those who had pushed to establish the position of the Special Rapporteur on Privacy after the revelations of Edward Snowden were not favouring international negotiations on surveillance and spying anymore. Brazil, speaking for the original privacy rapporteur co-sponsor countries including Germany, noted: “International human rights law provides a clear and universal framework for the promotion and protection of the right to privacy.” While adequate national implementation still needed more work, states through existing international law are bound to protect the right to privacy online. “A binding legal instrument on surveillance seems unnecessary,” Brazil said. The European Union representative made a similar statement.

Thirty-seven words are not a comprehensive legal framework, it is a statement of a right – UN Special Rapporteur for Privacy Joseph Cannataci

Cannataci warned that re-iterating the mantra of equal rights offline and online is just not enough.

“What we have is a universal right to privacy which is captured in thirty-seven words, which are replicated in both Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Convenant on Civil and Political Rights,” he said. “Thirty-seven words are not a comprehensive legal framework, it is a statement of a right.”

The text of the new EU General Data Protection Regulation, illustrates, Cannataci pointed out, that “the devil is in the details”. The GDPR – while not even including the issue of national security and privacy – contains 540,866 words.

Cannataci acknowledged that “his friends” in the Council obviously would “fear that any discussion of a legal instrument could lead to the hijacking of the process by countries which only pay lip service to human rights protection” and which would instead push for more oppression, even in international legislation.

While he was sympathetic to these concerns, he said “it is not going to solve the problem.”

Cannataci said – when looking to national legislative processes to address extra-territorial access to evidence – that many countries indeed seem to acknowledge the internet jurisdiction problem. He referred to discussions in the United States about the Cloud Act, in the EU about the eEvidence instrument, and the Council of Europe‘s preparations for a respective annex to the Convention on Cybercrime.

 

Image Credits: OHCHR