Reflecting on the Human Rights Council as a space to halt mass surveillance

Author's name: 
Shawna Finnegan
Johannesburg, South Africa

Last Friday the 24th session of the UN Human Rights Council came to a close in Geneva. The Human Rights Council – ‘an intergovernmental body responsible for strengthening the promotion and protection of human rights around the globe and for addressing situations of human rights violations and make recommendations on them’ – is a space caught so fiercely in power and procedure that it is difficult to discern what kind of change it affects. Or can affect in the future.

At least that was my experience from the week I spent navigating the halls that house this complex body; sitting at the back of the large rounded Room XX, with its expensive ceiling and additional set of metal detectors. ‘Important decisions are made here’, I imagined, waiting patiently to enter the room for the first time on a rainy Monday morning. I had registered to make an oral statement that day on behalf of APC, Access, EFF, Privacy International and RSF – to discuss the right to privacy and a new set of International Principles on the Application of Human Rights to Communications Surveillance as part of an agenda item on the promotion and protection of all human rights. This same coalition also submitted a written statement to the session, one of several NGO submissions on the impact of mass surveillance on human rights, including a joint submission by Jinbonet on behalf of 14 NGOs in the Republic of Korea.

The previous Friday, Pakistan, on behalf of an interesting group of countries, made a statement on recent NSA surveillance revelations, reminding the Council that “Article 12 of the Universal Declaration on Human Rights, and numerous international statutes and treaties forbid such systems of of massive, pervasive surveillance”. However, rather than draw on these statutes and treaties to address serious violations of the right to privacy, the statement criticises bodies related to the multi-stakeholder development and application of shared principles, norms, rules, decision-making procedures, and programs that shape the evolution and use of the internet – in particular the Internet Governance Forum – for having “not been able to deliver the desired results”. The statement then calls for the creation of an intergovernmental mechanism on internet governance – a decidedly non-multistakeholder approach which further complicates and slows down action to protect our right to privacy. Ecuador also supported the statement, before hosting a side event in which Julian Assange, speaking via remote, called for urgent action to protect our right to freedom of expression. I am not sure what kind of urgent action an intergovernmental body, which would presumably take several years to develop, would undertake.

One of the great strengths of the International Principles on the Application of Human Rights to Communications Surveillance is that they are based entirely on existing international human rights law. Moving away from complex discussions of the future of internet governance, the principles are intended to be used to assess existing policies and practices of States and private companies to hold these powerful actors accountable for their respect of human rights in light of new surveillance technologies and techniques.

While I was not able to make an oral statement that Monday morning due to a misunderstanding of the complex procedures of registering and re-confirming NGO speaking slots, I did get new insight into the microcosm of international politics that manifests in Room XX. There was the usual posturing by some (most) States, tense responses and rights to reply, followed by urgent concerns from NGOs – some met with ambivalence, others contradicted by their governments.

In a general debate on human rights situations that required the Council’s attention, Ecuador responded to a statement made by Switzerland concerning its new widely debated communications law, stating that the law was based on human rights, contrary to previous instruments based on a commercial perspective for mass media. Ecuador suggested that before criticising other countries Switzerland should adopt measures to combat extremism and address racist discourse in its own territory.”

Later, a delegate from Cuba interrupts the oral statement of the wife of a murdered Cuban activist with a point of order, accusing her of spreading lies, and asking that she not be permitted to continue. Immediately the delegate from China chimes in to support Cuba, and from across the room the US delegate rushes to defend freedom of expression in the space. Speaking in a right of reply, the Cuban delegate states that the United States did not have the moral authority to judge anyone in the Council and was the greatest threat against human rights worldwide; and was hypocritical to advocate for freedom of expression given the ferocious human hunt it had subjected Julian Assange and Edward Snowden to in reaction to their revelations. Cuba stated that the system of global espionage should be condemned since it violated not only States’ sovereignty but also the right to privacy of many people. Further – that the only explanation for allegations regarding the accidental deaths of Oswaldo Paya and Harold Cepero on 22 July 2012, as well as other groundless accusations, was the intention of the United States and its Cuban mercenaries to discredit Cuba.

I take a breath and wonder if these type of conflicts are simply status quo. Interrupted and calcified by life outside that room – pushing along the slow process towards progress. In a space where progress is a new non-binding resolution.

Is this too cynical a perspective of a global policy space where civil society can speak directly to governments? If we are fortunate, our words may even fall on sympathetic ears. That was my hope when finally I had my two minutes to address the Council regarding their obligations to uphold human rights principles and democracy online.

By that point it was Thursday, and I had spent the week observing debates, strategizing with other NGOs, and meeting with the ambassadors and representatives of States supportive of ‘Internet Freedom’. During these meetings, we discussed the 13 principles on surveillance, and I lobbied for internet and privacy-related recommendations to be made at the upcoming Universal Periodic Reviews of Nigeria and Mexico (NGOs are not permitted to make recommendations ourselves, but rather must advocate through States). While the representatives I spoke to expressed concern for the respect of human rights in carrying out communications surveillance, there was a general mood of acceptance that the collection of data by our governments was necessary for our collective security.

The government diplomats that I spoke to were generally amenable to the principles, and many asked insightful questions about their implementation, and how to regain trust and legitimacy in the aftermath of the NSA revelations. Transparency, disclosure, judicial oversight and due process were endorsed as safeguards against abuse, with the complexity of changing technology given as justification for non-adherence.

“We need technical support and examples of good practice” explained one diplomat, when I asked what was needed to ensure that new surveillance policies and practices respected human rights.

“Where is the push from consumers?” asked another government official, suggesting that apathy and a digital culture of sharing were preventing effective political pressure to be placed on States to respect privacy online. “Didn’t the creator of Facebook say that privacy was dead?” added another.

This is where disillusionment starts to set in – where I start wondering what change can really be affected through the slow processes of the Human Rights Council and its related mechanisms.

Certainly last year’s resolution affirming that the same human rights that apply offline must also apply online has been a crucial turning point in discussion of internet-related human rights at the global level. Increased focus on the impact of the internet in HRC24 resolutions, by Special Rapporteurs on freedom of association and contemporary forms of racism in a working group on discrimination against women in law and practice; and within the UPR process are important steps forward, providing leverage for further advocacy.

However there is a sense that real progress to halt mass surveillance can only be achieved through meaningful engagement of internet users en masse – that unless we are collectively breathing down the necks of our government officials, demanding accountability, nothing much will change. Political agitation without popular mobilization is, ultimately, unsustainable.

So, dear community of rights defenders, what must we do to mobilize more effectively? How can we coordinate our disparate efforts so that not just governments, but also private companies and all those who hold power over our personal data – our right to privacy – feel the united force of our demands for change?

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