US-based surveillance and data collection: New UN report provides guidance on PRISM

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Par Shawna Finnegan and Carly Nyst pour APCNews and Privacy International

WINNIPEG, Canada, 13 June 2013

At the 23rd session of the UN Human Rights Council, the UN Special Rapporteur on freedom of opinion and expression, Frank La Rue, released his latest report – an analysis of the implications of States’ surveillance of communications on the exercise of the human rights to privacy and to freedom of opinion and expression. The report covers a number of important issues, including lack of judicial oversight, unregulated access to communications data, mandatory data retention, exceptions for national security, identity disclosure laws, restrictions on encryption and key disclosure laws, extra territorial application of surveillance laws and extra-legal surveillance.

This report by the Special Rapporteur comes at an important time, as leaked classified documents detailing surveillance by the US National Security Agency (NSA) reveal consistent violations of international human rights obligations. According to these leaked documents surveillance is performed by the NSA program ‘PRISM’, which allows for the collection of personal data including the content of search history, email, and online chats. Targeted at non-US communications, the programme raises serious concern over extra-territorial application of surveillance laws, and unregulated access to communications data.

If the US government – bound by the world’s most well-tested constitutional protections, reinforced by rigorous congressional oversight, buttressed by an independent judiciary – is secretly spying on its citizens, what can we expect from any other government? What does that say about the veracity and accountability of public figures if the head of the National Security Agency during testimony to Congress avoids mentioning this significant data gathering exercise and then lies to the press? It was only few weeks ago when General Keith Alexander, head of the NSA, told Reuters that “the great irony is we’re the only ones not spying on the American people”.

Sadly, this is not new or isolated. Worse, it is now legitimized. The discovery is part of a growing tide of surveillance measures, in both democratic and repressive states, that will ultimately have the effect of creating all-seeing, all-knowing governments, removing any pretense of a private space free from State interference. In just the past few months, we’ve seen reports of the US Department of Justice spying on journalists, the French and Spanish governments trying to legalise trojan software for the use of law enforcement, a UK Communications Data Bill that would essentially replicate and enhance the tactics being used by the NSA, and studies that show the presence of invasive surveillance technologies in countries like Australia, Germany, Singapore, and Malaysia.

If they turn to the law for protection, individuals will find little recourse. In many countries, laws have not kept up with technological changes, and are obsolete. In others, tangential references to terrorism and paedophilia have been used to justify the weakening of legal standards, the removal of judicial oversight, the expansion of national security exceptions, and the purported extension of domestic powers to foreign jurisdictions. Laws mandating the collection and retention of extra forms of data, laws requiring the provision of identification at cybercafés or the use of real names online, and laws compelling the provision of decryption assistance all proliferate.

This widespread and invasive surveillance is has the effect of instilling fear in the citizenry; fear that our thoughts, words and relationships will be the subject of interception and analysis; fear that the content we access on the internet will be exposed. This fear can cause us to withdraw from public spaces, censor our communications, refrain from accessing certain services.

It is still unclear what role internet intermediaries, such as Google, Facebook, and Apple, played in providing access to data used by the NSA. According to the leaked document, surveillance relies on participation of US-based online intermediaries, reporting that “access is 100% dependent on ISP provisioning”. The Special Rapporteur addresses intermediary liability in his report, stating that the private sector “played a key role in facilitating State surveillance of individuals” and in the most serious cases have “been complicit in developing technologies that enable mass or invasive surveillance in contravention of existing legal standards”.

While Google denies having knowledge of the NSA PRISM scheme it recently confirmed that it’s Transparency Report does not include data on NSA surveillance. Examining the roles and responsibilities of the private sector, the Special Rapporteur stated “States must ensure that the private sector is able to carry out its functions independently in a manner that promotes individuals’ human rights.”

On Tuesday June 4th, Privacy International, with support from APC and the Norwegian Ministry of Foreign affairs, held a side-event at the HRC to discuss issues raised by the Special Rapporteur is his report – the first explicit statement by a UN body about the dangerous effects of State Surveillance since 2009. Importantly, the report emphasised that surveillance must be subjected to the oversight of independent mechanisms before it is conducted. Without safeguards protecting private communications from the intrusion of State actors, the important democratic tenets of individual autonomy, free speech and political participation cannot be realised.

Judicial authorisation by independent and impartial tribunals is an essential prerequisite to surveillance. Courts must be accessible and their decisions open to the scrutiny of the public. In this sense, secret courts are completely deficient and incapable of playing an effective oversight role and fail to provide a fair and open administration of justice. If the way governments interpret the law, and the manner in which they execute it, is secret, then the law in effect is secret.

For too long governments have exploited advances in surveillance technology that have far outpaced national laws regulating their use. No surveillance should be conducted unless it is explicitly authorised by a law that citizens can access and understand. Individuals must be able to forsee that they may be subjected to surveillance, and as a result, laws should be precise and clear.

Further, blanket and indiscriminate surveillance should never be legal. International human rights standards demand that each violation of human rights be considered on a case by case basis in which a court weighs the
proportionality of the benefit to be gained against the harm to be done. Mass surveillance can never satisfy this critical requirement.

APC and Privacy International, as part of a coalition of more than 90 civil society organizations and individuals, presented a joint statement to the Human Rights Council on June 10th, addressing the PRISM/NSA case and calling on the HRC to act swiftly to prevent the creation of a global Internet based surveillance system by:

  1. convening a special session to examine this case
  2. supporting a multistakeholder process to implement the recommendation of Mr La Rue that the Human Rights Committee develop a new General Comment 16 on the right to privacy in light of technological advancements; and
  3. requesting the High Commissioner to prepare a report that:
    1. formally asks states to report on practices and laws in place on surveillance and what corrective steps will they will take to meet human rights standards, and,
    2. examines the implications of this case in in the light of the Human Rights Council endorsed United Nations Guiding Principles on Business and Human Rights, the “Protect, Respect and Remedy” Framework of A/HRC/RES/17/4.

Recalling statements made by the Special Rapporteur on freedom of opinion and expression, the civil society coalition statement calls on States to protect whistleblowers involved in the PRISM case and to support their efforts to combat violations of the fundamental human rights of all global citizens.

Recent revelation compels us to update our understandings about what information is valuable and of interest to our governments, and to demand that greater protection be accorded to such information. As surveillance technologies and methods advance, communications traffic data – traditionally treated as “less private” by law and as such subjected to lower authorisation thresholds – becomes a treasure trove from which the State can derive vast amounts of information. This includes who we talk to and for how long; where we go and who we meet; who we bank with, shop with and receive a variety of other services from – creating a detailed profile of our associations, movements, relationships, and activities.

Privacy is the fundamental barrier that stands in the way of complete State control and domination. And it is gradually being dismantled by laws and technologies that enable government intrusion into our emails, internet activities, phone calls, movements, interactions and relationship. A citizenry unable to form or communicate private thoughts without the interference of the State will not only be deprived of their right to privacy, they will be deprived of their human dignity. For the ability to freely think and impart ideas is essential to who we are as human beings.

Watch this space for further updates and information on internet-related issues at the Human Rights Council and related mechanisms.

Photo by Faheem Hussain

(FIN/2013)

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