Topics,  International,  United Nations,  Policy

Can the current state of national surveillance comply with the the International human rights law ?

By Sanjana Rathi

Part I

On the 25th of June 2019, David Kaye — United National Special Rapporteur on freedom of opinion and expression called for an immediate moratorium on the sale, transfer, and use of surveillance technology. He called for a ban until “effective national/international controls are put in place to lessen the harmful impact”. He also asserted that the private companies appear to be operating without constraint, in a “free-for-all” private surveillance industry environment.

According to the report and recommendations are given, the use of surveillance without control is a challenge to human rights such as — the right to privacy, freedom of expression, association & assembly, religious belief, non-discrimination, and public participation.

The United Nations General Assembly, in its resolution 68/167, international human rights law provides the universal framework against which any interference in individual privacy rights must be assessed. Article 12 of the Universal Declaration of Human Rights provides that “no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.” The International Covenant on Civil and Political Rights, to date ratified by 167 States, provides in article 17 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 honor and reputation”. It further states that “everyone has the right to the protection of the law against such interference or attacks.”

The current state of surveillance

In the United Kingdom earlier this year, the human rights group Liberty had lost its High Court challenge against the government’s Investigatory Powers Act. The legislature which allows for mass surveillance of electronic devices, allowing intelligence agencies to extract and store information deeming the surveillance powers lawful. In the U.S, the Fourth Amendment protects the people from ‘unreasonable’ search and seizure and surveillance. For a quest to be ‘reasonable’, the government must have “probable cause” that a crime has been or is being committed, and the government must first get a search warrant.

The 4th Amendment and similar laws in other countries protect its citizens from unlawful surveillance, thereby upholding human rights. Then, what is the problem?

Surveillance Vs. Human Rights

The national privacy laws can apply to computerized data. However, because it is conceptualized in terms of physical searches, its application to electronic data has been strained.

Every democratic country has a law to protect citizen rights to free speech, to peacefully assemble, and to petition the government for redress. However, there is potentially implicated in situations of electronic surveillance. If the government is stalking us, we are less likely to feel comfortable to speak out on controversial issues, especially those critical of the government.

One of the famous cases from history is the FBI wiretaps against Martin Luther King. Hoping to prove the Rev. Martin Luther King Jr. was under the influence of Communists, the FBI kept the civil rights leader under constant surveillance. The agency’s hidden tape recorders turned up almost nothing about communism, but instead they did reveal embarrassing details about King’s sex life. These details were used by the FBI to go against him. Furthermore, the government can monitor journalists under a foreign intelligence law that allows invasive spying and operates outside the traditional court system.

Also, there is strong evidence of a growing reliance by Governments in the private sector to conduct and facilitate digital surveillance. Governments have used both formal legal mechanisms and covert methods to gain access to content, as well as to metadata. This process is increasingly formalized: as telecommunications service provision shifts from the public sector to the private sector, there has been a “delegation of law enforcement and quasi-judicial responsibilities to Internet intermediaries under the guise of ‘self-regulation’ or ‘cooperation’”. The enactment of statutory requirements for companies to make their networks “wiretap-ready” is a particular concern, not least because it creates an environment that facilitates sweeping surveillance measures.

The challenge to solving the case of ‘unlawful’ surveillance

Surveillance laws are put in place worldwide by different states and regimes for national security. Citizens feel that the state must protect its citizens, and thus these measures are put in place. Therefore the citizens and government must be clear with what they want, i.e., they must strike a balance between privacy and surveillance for national security. David Kaye has recommendations calls for the states to adopt domestic safeguards to protect individuals from unlawful surveillance and enforce export control measures to these surveillance technologies.

Another challenge faced by society today is the rise of ‘peer-surveillance’ . One of the typical examples for this is the ‘Human Flesh Search Engine’, a phenomenon in which Internet users hunt down and punish people has repeatedly attracted the attention of the media. How do we tackle the human rights issues that arise due to Internet Vigilantism and peer-surveillance due to social media?


In Part II of this article, I will cover the issue regarding the adoption of domestic safeguards to protect human rights and export control measures to these surveillance technologies. I will also present the challenge to human rights in case of peer-surveillance.

TheCyberDiplomat is a cybersecurity and publishing service that does everything related to cyber.

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