This article is part of Right Now’s February issue, focusing on Technology and Human Rights.
By Asher Hirsh
Last year, worldwide media was captivated by the revelations brought about by Edward Snowden, that the US, as part of the “5-eyes” program along with the UK, Canada, Australia and New Zealand have conducted a worldwide systemic surveillance of communication data. As Snowden, an ex National Security Agency (NSA) contractor, revealed, the surveillance includes metadata, location data, text messages, emails and even voice records.
Such data is not obtained via the traditional process of obtaining a warrant, but rather collected and stored on a mass scale despite any suspicion or cause for surveillance. More worrying, as Snowden pointed out in a recent media interview, is the way the members of the “5-eyes” spy program bypass domestic laws through partnering with other members. While Australia cannot spy on its own citizens without legal process, Canada, New Zealand, UK or US can collect and share such data under this arrangement. As such, as domestic laws have often failed to protect the privacy of the public, it is important to look towards international human rights laws to protect the right to privacy.
International Human Rights Law
The United Nations General Assembly has recently adopted a resolution declaring the “right to privacy in a digital age.” In the resolution, the General Assembly reaffirmed the right to privacy found within the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
Article 12 of The Universal Declaration of Human Rights (UDHR) states that:
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
In addition, article 17 of the International Convention on Civil and Political Rights (ICCPR), which codifies the UDHR into a binding treaty states, almost mirrors the UDHR.
Such laws seem clear that privacy is a fundamental human right, and that mass surveillance seems to breach this right. However, human rights are often about a balance of competing rights. While indeed some rights are absolute, such as the right not to be tortured, other rights can be limited or qualified in certain circumstances.
The recent debate regarding freedom of speech and racial discrimination is another example of the balancing act required to protect competing human rights. In the same way, the right to privacy may be limited by other competing rights, such as the right to life or the safety of a community.
Indeed the wording of the law in the ICCPR refers to “arbitrary or unlawful interference”. Such words ask us to consider if the NSA spying is indeed unlawful or arbitrary.
The term unlawful, as the UN Human Rights Committee points out, means that no “interference can take place except in cases envisaged by the law.” As such, it is important to look to domestic cases to understand if these mass surveillances are unlawful.
Already in the US there is a debate about the constitutionality of the NSA program. Late last year a federal judge in Washington “ruled that that the bulk collection of Americans” telephone records by the NSA is likely to violate the US constitution, calling it “almost Orwellian”. However, only 10 days later, a New York federal trial judge found the exact opposite, stating that the NSA spying was legal under the American constitution. A conclusion to this case will probably only be decided by the US Supreme Court in 2015.
In other countries, mass surveillance is also being challenged in domestic courts. A case in British courts by nearly a dozen civil liberties groups seeks to challenge the legality of programs run by MI5, MI6 and GCHQ. In Canada, the Communications Security Establishment Canada has admitted to illegally spying on Canadian citizens when attempting to spy on other citizens internationally.
Back home in Australia, Prime Minster Abbott has defended Australia’s role in the “5-eyes” spy program, stating, “Australia will act to protect our national interest and to protect our citizens”. This is particularly worrying when Australia has offered to share metadata with other 5-eyes partners, and the NSA has considered unilateral spying on Australian citizens. In addition, Australia has been caught up in controversy over spying on the Indonesian President, his wife and minister, as well as in the East Timor case.
However, while the debate regarding domestic legally continues, it is important to understand that even if such systemic spying is legal under domestic laws, any violations of privacy must still comply with the provisions, aims and objectives of the ICCPR. As Sarah Joseph and Melissa Castan point out in their book, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary:
Prohibition of “unlawful” interferences with privacy offers only limited human rights protections, as States Parties could potentially authorise highly oppressive invasions of privacy in municipal law so long as the laws were expressed with the requisite precision. Therefore, the prohibition is necessarily supplemented by the prohibition of arbitrary interferences with privacy.
The second prohibition on surveillance is found in the term “arbitrary” interference. As the UN Human Rights Committee points out:
“arbitrary interference” can also extend to interference provided for under the law. The introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances.
Thus, as governments continue to argue the legality of their spying programs, it still may be a violation of international law, especially if such spying is arbitrary. The definition of “arbitrary” means that it “must be proportional to the end sought and be necessary in the circumstances of any given case”, as the decided in the famous case of Toonen v Australia.
Thus, in order to be proportionate and necessary, they have to serve a greater purpose than the rights they are breaching. In other words, if the public should accept that their privacy be invaded, they would need to be getting something much better in return, such as safety and protection.
Those in government argue that such an interference with the right to privacy is necessary for the protection of life, security and other harms like child pornography.
However, a requirement of proportionality and necessity begs the very important question: do these mass surveillances on a global and systemic level actually protect the public? Despite the enormous scale and cost of these programs, the there has yet to any proof that such surveillance actually stops terrorists.
If these programs haven’t made the world safer, then perhaps there is a more ulterior motive behind these programs. Without any proof of the necessity of such programs to protect the public, it seems these programs are a mass violation of international human rights law.
Privacy and Free Speech
Looking again to the debate regarding free speech and racial discrimination, the right to privacy is also intrinsically connected to the right to free speech. Indeed, how can a society that is continually and systematically monitored feel free to speak openly? As Kenneth Roth, Executive Director of Human Rights Watch points out, “privacy and free expression are intimately linked”:
People are more likely to speak candidly if they can be assured of speaking privately. Whether it involves a client confiding in a lawyer, a patient talking to a doctor, a source speaking to a journalist, or an adherent of an unpopular cause addressing other supporters, robust speech suffers when privacy is imperilled.
This view is reflected by the Special Rapporteur on Freedom of Expression and Opinion who argues that:
The right to privacy is often understood as an essential requirement for the realization of the right to freedom of expression. Undue interference with individuals’ privacy can both directly and indirectly limit the free development and exchange of ideas … An infringement upon one right can be both the cause and consequence of an infringement upon the other.
Thus, mass surveillance may also be a breach of the right to freedom of expression under article 19 of the ICCPR.
Given the priorities of Tim Wilson, the new Human Rights Commissioner, to examine laws that impeach on the right to free speech, the systemic surveillance of the public should be a high priority.
In addition, the surveillance of journalists is a troubling threat to a free and independent media, especially when journalists rely heavily on anonymous sources.
Systemic government surveillance is also a threat to the right to a fair trial under article 14 of the ICCPR, as exemplified in Australia’s East Timor spying case, and recent revelations that Australia spied on a US law firm representing Indonesia.
The use of mass surveillance threatens the very nature of a democratic and fair society. The vey act of constantly being monitored has profound impacts on how a society, and individuals, operates. As the Special Rapporteur on Freedom of Expression and Opinion argues:
Communications surveillance should be regarded as a highly intrusive act that potentially interferes with the rights to freedom of expression and privacy and threatens the foundations of a democratic society.
As our MPs continue to debate these programs in parliament, it is important to consider the human rights standards committed to by our governments. When our government admits to openly spying “for the benefit of our friends” and to “uphold our values” it is important to take a step back and assess if their actions are a violation of human rights law.