Readers will recall that in its resolution on the right to privacy in the digital age the UN General Assembly had requested the Office of the High Commissioner for Human Rights to prepare a report for the next GA session on the various issues raised by mass electronic surveillance and the human right to privacy (see here for our previous coverage). An advance edited version of that report (A/HRC/27/37) is now available here. The report is rich, thoughtful and very much pro-privacy in the surveillance context, albeit not in a blind, fundamentalist way. It reaffirms that the right to privacy, as set out in Article 17 ICCPR or Article 8 ECHR, provides a framework within which the legality of surveillance measures needs to be assessed. While it acknowledges the legitimate governmental interests that surveillance may serve, it finds the existing institutional and legal arrangements in many states wanting and in need of further study and reform. Here are some of the highlights:
- It is important to consider linkages with other possible human rights violations, e.g. the collection of intelligence through surveillance that is later used for an unlawful targeted killing (para. 14).
- Interferences with the privacy of electronic communication cannot be justified by reference to some supposedly voluntary surrender of privacy on the Internet by individual users (para. 18).
- Collection of communications metadata can be just as bad in terms of privacy interference as the collection of the content of the communication (para. 19).
- Because of the chilling effect of surveillance: ‘The very existence of a mass surveillance programme thus creates an interference with privacy.’ (para. 20).