UN comments on mass surveillance programmes

Wide view of the 23rd session of the Human Rights Council. 27 May 2013 Geneva, SwitzerlandIn response to a question about mass surveillance programmes and human rights, the UN human rights body (OHCHR) has replied that of relevance to the current debates on methods of mass surveillance, is article 17 of the International Covenant on Civil and Political Rights (ICCPR)*. This prohibits States from interfering with the privacy of those within their jurisdiction. It requires them to protect those persons by law against arbitrary or unlawful interference with their privacy. In other words, any act which has an impact on a person’s privacy must be lawful.

This means that any search, surveillance or collection of data about a person must be authorized by law. The extent to which this occurs must not be arbitrary, which in turn requires that the legislation must not be unjust, unpredictable or unreasonable.

In its General Comment 16**, the Human Rights Committee – the body which oversees the application of the ICCPR – has noted that article 17 of the Covenant imposes specific obligations relating to the protection of privacy in communications, underlining that “correspondence should be delivered without interception and without being opening or otherwise read. Surveillance, whether electronic or otherwise, interceptions of telephonic, telegraphic and other forms of communication, wire-tapping and recording of conversations, should be prohibited. “The Committee further has stated that “the gathering and holding of personal information on computers, data banks and other devices, whether by public authorities or private individuals or bodies, must be regulated by law.”

Also of particular relevance, in his report to the most recent session of the Human Rights Council, the UN Special Rapporteur on the right to freedom of opinion and expression analysed the implications of States’ surveillance of communications on the exercise of the rights to privacy, and to freedom of opinion and expression. The report underlines the “urgent need to further study new modalities of surveillance and to revise laws regulating these practices in line with human rights standards.”

In his report, the Special Rapporteur said that: “States cannot ensure that individuals are able to freely seek and receive information or express themselves without respecting, protecting and promoting their right to privacy. Privacy and freedom of expression are interlinked and mutually dependent; an infringement upon one can be both the cause and consequence of an infringement upon the other. Without adequate legislation and legal standards to ensure the privacy, security and anonymity of communications, journalists, human rights defenders and whistleblowers, for example, cannot be assured that their communications will not be subject to States’ scrutiny.” (Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, A/HRC/23/40, para 79***).

*To access the International Covenant on Civil and Political Rights please go to: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx

**The Human Rights Committee’s General Comment No. 16 is available here: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/23378a8724595410c12563ed004aeecd?Opendocument

***To see the report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, on the implications of States’ surveillance of communications on the exercise of the human rights to privacy and to freedom of opinion and expression (17 April 2013), please go to:
http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session23/A.HRC.23.40_EN.pdf

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