Home Human Rights Archive for category "Right To Privacy/Family Life"

Embedding Human Rights in Internet Governance

In Resolution 56/183 (2001), the UN General Assembly welcomed the creation of an inter-governmental World Summit on the Information Society (‘WSIS’) to address the digital revolution and the increasing digital divide between the global North and South. During the Summit’s two phases (Geneva, 2003 and Tunis, 2005) a common desire and commitment to build a people-centred, inclusive and development-orientated Information Societyemerged. A key objective was therefore to harness the power of information and communications technology (ICT) to secure the realisation of the Millennium Development Goals (MDGs).

A decade on, and against the backdrop of the recent transition from the MDGs to the Sustainable Development Goals (SDGs), a review of the implementation of the WSIS outcomes is underway. Delegations met last week for the Second Preparatory Meeting of the UN General Assembly’s Overall Review of the Implementation of the Outcomes of the WSIS (‘WSIS+10 Review’). The aim of this meeting was to engage member States and other stakeholders to reach a consensus on critical issues, such as the goals of Internet governance, the relationship between WSIS and development and how to address human rights related to ICT. Oral statements and written submissions served as the basis for developing the current Zero Draft into a Second Draft. The WSIS+10 Review will culminate in a High-Level Meeting on 15-16 December, at which an Outcome Document will be adopted.

Treatment of human rights in the Zero Draft is inadequate. A sub-section on human rights is included within Internet governance and there are other brief references scattered throughout the Draft. However, human rights are not presented as a foundational principle of Internet governance, but are rather narrowly confined to issues of freedom of expression and the right to privacy. In this post and in our response to the Zero Draft as part of an ESRC Funded Large Grant on Human Rights and Information Technology in an Era of Big Data, we argue ]for a more systematic approach to human rights in this process, in order to reflect the full scope of the human rights issues raised by the use of ICT and big data.

Opportunities and Challenges Presented by the Use of ICT and Big Data

Technology has the potential to produce an impact on all aspects of society. The use of ICT is becoming essential to the conduct of government operations, to business, and to individuals’ day-to-day lives. ICT and human rights have become inextricably intertwined, and this is set to continue in line with progress towards the Information Society. This interconnectivity means that ICT has concrete human rights implications, which can be both positive and negative. Significantly, however, the full extent of ICT’s human rights implications are not yet known.

The transformative potential of ICT and big data for the protection and promotion of human rights is becoming increasingly apparent. For example, digital platforms have facilitated local and global dialogue between human rights defenders, minorities and other democratic voices, giving rise to the phrase ‘liberation technology’. Analytics and the use of big data can assist in the identification of otherwise invisible forms of vulnerability and discrimination. This information can be utilised to target interventions and to facilitate efficient resource allocation and can therefore be employed to facilitate the achievement of the SDGs. For example, in relation to ‘good health and well-being’ (Goal 3), the adoption of e-health and m-health (where health services are delivered electronically or via mobile devices) can lead to cost-effective access to health care. Equally, the analysis of data drawn from a significant number of electronic health records (big data-based analytics) can be used to identify appropriate treatments and facilitate early intervention, reducing future health care costs. Technological assistance in the identification of vulnerability and discrimination also facilitates ‘reduced inequalities’ (Goal 10), and can assist in tackling the ‘digital divide’.

However, the inappropriate use of ICT and big data has the potential to interfere with the enjoyment of human rights and thereby undermine the opportunities for realising human rights and attaining the SDGs. Read the rest of this entry…

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The Growing Importance of Data Protection in Public International Law

Globalization and borderless electronic communication has brought huge benefits to individuals. At the same time, the increased exploitation of personal data by the private sector and reported intelligence gathering of personal data via the Internet have caused widespread international concern. The recent appointment by the UN Human Rights Council of a Special Rapporteur on the right to privacy in the summer of 2015, and the adoption on 18 December 2013 by the UN General Assembly of a resolution on “the right to privacy in the digital age”, demonstrate the growing international interest in data protection rights.

There is a growing need for legal rules protecting the processing of personally-identifiable data, known as data protection, to be anchored more firmly in public international law. The increasing number of regulatory conflicts caused by differing national and regional conceptions of data protection, as illustrated by the judgment of 6 October 2015 of the Court of Justice of the European Union in Maximillian Schrems, should be a wake-up call to the international community in this regard.

Indeed, data protection at the international level remains fragmented and weak, creating risks for individuals and problems for international organizations (such as UN entities and international humanitarian organizations), many of which process large amounts of personal data. Read the rest of this entry…

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Human Rights Treaties and Foreign Surveillance

Published on September 28, 2015        Author: 

A quick heads-up that the final version of my article on Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age, is now available on the website of the Harvard International Law Journal. The article grew from a series of posts I did here on this topic. The published version also contains a postscript addressing some of the recent developments after the piece was accepted for publication; see here generally for the blog’s coverage of surveillance issues.

In the meantime the UN Human Rights Council has appointed Prof. Joseph Cannataci of the University of Malta as the first special rapporteur on privacy. His candidacy enjoyed significant support from privacy organizations, while his election took no small amount of politicking, with the German president of the Council overruling a proposal made by a five-state consultative group, which favoured Estonian Prof. Katrin Nyman-Metcalf, who was perceived as not being sufficiently critical of mass surveillance practices. Prof. Cannataci, on the other hand, has already come out with harsh criticisms of digital surveillance programmes; he inter alia “described British surveillance oversight as being “a joke”, and said the situation is worse than anything George Orwell could have foreseen.”

Hyperbole aside, Prof. Cannataci has also called for the adoption of a “Geneva Convention” for the Internet “to safeguard data and combat the threat of massive clandestine digital surveillance.” And a couple of days ago Edward Snowden and a group of activists came out with one such proposal, labelled the “International Treaty on the Right to Privacy, Protection Against Improper Surveillance and Protection of Whistleblowers,” or the “Snowden Treaty” for short. Only a short and uninformative summary seems to be publicly available at this time.

I must say that I have grave misgivings about such proposals (with the caveat that the proposed draft has not yet been published). First of all, proposing such a new treaty implies that the existing legal framework is incapable of meaningfully regulating surveillance practices, despite the relevant privacy provisions in the ICCPR, the ECHR and the ACHR, and despite existing case law and materials (especially from the Strasbourg Court). In other words, proposing a binding gap-filling instrument assumes that a regulatory gap exists. Secondly, politically it seems exceptionally unlikely that any of the major players in the surveillance sphere (e.g. the US, UK, Russia, China), not to mention authoritarian regimes in many smaller states, would agree to any binding multilateral treaty in the foreseeable future, let alone to a comprehensive “Geneva Convention for the Internet.” Nor will the “Snowden Treaty” label make this proposed agreement any more politically palatable. So it’s just completely unclear to me what a feel-good, pie in the sky proposal such as this one is actually going to achieve, except needlessly waste precious political energy and undermine efforts to regulate surveillance and other intrusive cyber practices under the existing legal framework.

But let’s wait and see. In the meantime, Jessup competitors this year will have a nice, fat surveillance case to litigate before a fictional ICJ, and best of luck to them.

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The Ballad of Google Spain

Published on September 7, 2015        Author: 

This poem was submitted for our Last Page, but given its wit and topicality I thought it should go on our First Page, namely in this Editorial. Kudos to Paul Bernal.

There was a case, called ‘Google Spain’
That caused us all no end of pain
Do we have a right to be forgotten?
Are Google’s profits a touch ill-gotten?

From over the pond came shouts of ‘Free Speech!’
So loud and so shrill they were almost a screech
From the ECJ came a bit of a gloat
‘We’ve got that Google by the throat!’

Said Google ‘If it’s games you play’
‘We’ll do that too, all night and day’
So they blocked and blocked, and told the press
‘It’s that evil court, we’re so distressed’

’Such censorship,’ they cried and cried
Though ‘twas themselves who did the deeds
They didn’t need to block the links
They were just engaging in hijinks

And many stood beside them proudly
Shouting ‘freedom’, oh so loudly
‘Google is our free-speech hero!’
‘We’ll fight with them, let’s be clear-oh!’

Others watched and raised their eyebrows
Listening wryly to these vows
And thought ‘is Google really pure?’
‘From what we’ve seen, we’re far less sure.’

For Google blocks all kinds of sites
‘Specially for those with copyright
And, you know, this isn’t funny,
When blocking things will make them money

This isn’t just about free speech
No matter how much Google preach
What matters here is really power
Is this truly Google’s hour?

Does Google have complete control
Or do the law courts have a role?
Time will tell – but on the way
Our privacy will have to pay…

Paul Bernal

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Data Protection in International Organizations and the New UNHCR Data Protection Policy: Light at the End of the Tunnel?

Published on August 31, 2015        Author: 

In May 2015 the United Nations High Commissioner for Refugees (UNHCR) published its Policy on the Protection of Personal Data of Persons of Concern to UNHCR (Data Protection Policy). The Policy may seem to be merely an internal guidance document addressed to the staff members of an international organization. However, as a subsidiary organ of the United Nations, established by the General Assembly pursuant to Article 22 of the UN Charter, working for millions of refugees and with thousands of other organizations active in the field of protection and assistance, UNHCR bears a certain responsibility when it sets internal standards which inevitably also have an external impact. Moreover, the Policy highlights the growing importance of data protection in international law, particularly for the work of international organizations.

Against this background, our blog addresses some interesting underlying legal issues of public international law raised by the Policy. In particular, it discusses the relevance of data protection to the work of international organizations, including UN agencies, and what level of data protection is appropriate and required for international organizations in general and UNHCR in particular, taking into account the humanitarian context in which the organization often operates. Read the rest of this entry…

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UN Human Rights Council Adopts Resolution on a Special Rapporteur for Privacy

Published on March 26, 2015        Author: 

The Council today adopted by consensus the resolution on privacy in the digital age, which includes the creation of a new special procedure. Bearing in mind the wide scope of the right to privacy, this SR is sure to be a mega-mandate. The resolution is available here; Privacy International press release here.

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A UN Special Rapporteur on Privacy – Why Now?

Published on March 24, 2015        Author: 

As the 28th ordinary session draws to a close this week, the UN Human Rights Council is expected to consider a proposal to create a new UN Special Rapporteur on the right to privacy. The draft resolution, spearheaded by Brazil and Germany and supported by a broad group of states, is the latest of a series of initiatives to bring the right to privacy firmly within the UN human rights agenda.

If established, the Special Rapporteur would provide much-needed leadership and guidance on developing an understanding of the scope and content on the right to privacy, as well as strengthening the monitoring of states and companies’ compliance with their responsibility to respect and protect the right to privacy in their laws, policies and practices. In the last two years, the UN General Assembly, the UN High Commissioner for Human Rights and existing special procedure mandate holders have all recognized the pressing need to provide continuous, systematic and authoritative guidance on the scope and content of the right to privacy, particularly in light of the challenges of modern communications.

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The Power of Citizenship Bias

Published on March 23, 2015        Author: 

Cross-posted on Lawfare.

Following up on my post from last week on the report of the Intelligence and Security Committee (ISC) of the UK Parliament, which inter alia recommended that British law for the first time introduce distinctions between citizens and non-citizens for the purpose of regulating electronic surveillance, I’d like to briefly comment on another relevant development. Amnesty International last week also published the results of a major public opinion poll conducted in 13 countries, in which 15,000 respondents were surveyed on a number of questions regarding surveillance. The upshot of the poll is that there is strong opposition to US mass surveillance programs in all of the countries surveyed, and this is also how Amnesty chose to present the results (Amnesty’s press release is available here; the full results are available here; an analytical piece by Chris Chambers, one of the researchers on the project, is available in The Guardian).

What I found most interesting about the poll are the responses regarding the question whether the permissibility of surveillance should depend on the citizenship of the target. As Chris Chambers explains:

Are people more tolerant of the government monitoring foreign nationals than its own citizens?

Yes. In all surveyed countries, more people were in favour of their government monitoring foreign nationals (45%) than citizens (26%). In some countries the rate of agreement for monitoring foreign nationals was more than double that of citizens. For instance, in Canada only 23% believed their government should monitor citizens compared with 48% for foreign nationals. In the US, 20% believed their government should monitor citizens compared with 50% for foreign nationals. These results suggest the presence of a social ingroup bias: surveillance is more acceptable when applied to “them” but not to “us”.

general attitudes to surveillance


In every country, people were more tolerant of surveillance directed toward foreign nationals than toward citizens. Illustration: Chris Chambers

We can also look at this ingroup bias in a different way – by specifically counting the number of people who disagreed with government surveillance of citizens while at the same time agreeing with surveillance of foreign nationals. In most countries, fewer than 1 in 4 people showed such a bias, with Sweden showing the least favouritism toward citizens (approximately 1 in 9). However, the US stands apart as having the highest ingroup bias – nearly 1 in 3 US respondents believed their government should monitor foreign nationals while leaving citizens alone.

ingroup bias

The US stood out as particularly prone to ingroup bias: favouring surveillance of foreign nationals over citizens. Illustration: Chris Chambers

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Comments on the British Intelligence and Security Committee Report

Published on March 16, 2015        Author: 

Cross-posted on Lawfare.

Last week the Intelligence and Security Committee (ISC) of the UK Parliament published its much-anticipated report entitled ‘Privacy and Security: A modern and transparent legal framework.’ The Report followed an extended inquiry into UK agencies’ surveillance practices prompted by the Snowden revelations; while it concludes that the agencies have generally acted within the prescribed legal limits, it also calls for a total overhaul of the UK legislation governing electronic surveillance, which it finds to be fragmented, overly complex and confusing. For helpful overviews of the Report’s main conclusions and recommendations, see Shaheed Fatima and Ruchi Parekh on Just Security, and James Ball in The Guardian.

The ISC’s exoneration of GCHQ et al. was hardly surprising – libertarians and privacy activists have derided its members as having long gone native and being nothing more than a bunch of apologists for the intelligence agencies whom they are supposed to oversee. Liberty’s ShamiChakrabarti thus commented that ‘the ISC has repeatedly shown itself as a simple mouthpiece for the spooks – so clueless and ineffective that it’s only thanks to Edward Snowden that it had the slightest clue of the agencies’ antics,’ while The Guardian’s editorial page a tad more delicately called it the ‘watchdog that rarely barks,’ the ‘slumbering scrutineer’ and a body that ‘searches out nothing.’ So there.

Whatever the intentions behind the Report, and despite the (at times comical) level of redactions in its public version, it is still a useful document. At a minimum, it provides a reasonably clear analytical overview of the legal framework currently regulating the surveillance activities of the British intelligence agencies, as well as the relevant procedures, and provides a helpful comparison point for those looking at the same set of problems in a different system, for instance in the United States or Germany. In this post I will comment critically on some aspects of the Report that I think are especially interesting and deserving of further consideration.

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The Naked Rambler in the European Court

Published on October 30, 2014        Author: 

Readers may recall that a couple of years ago I wrote about the story of Stephen Gough, aka the Naked Rambler, a man who has been repeatedly incarcerated in British prisons since 2006 for his refusal to wear any clothing in public. Indeed, he has spent most of that time in solitary confinement, since he could not join the rest of the prison population while refusing to wear clothes. Gough’s behaviour is due to a strongly and sincerely held belief that there is nothing shameful about the naked human body. And while Gough certainly has been obstinate (and has for some unfathomable reason sacrificed his family and other relationships for the sake of this cause), he is not crazy – indeed, his psychiatric evaluations have been stellar.

This case is so interesting precisely because it juxtaposes the expressive interests of a single individual against the preferences of the vast majority of ordinary people, who disapprove of public nudity, and because of the way that the machinery of the state is used to enforce a societal nudity taboo. Indeed, Gough’s case now rambled all the way to Strasbourg. This week, a unanimous Chamber of the European Court of Human Rights rejected Gough’s claims that his freedom of expression and right to private life were violated by his convictions in the UK (app. no. 49327/11).

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