Protecting the Right to Privacy at the United Nations

By Carly Nyst
United Nations Geneva

When whistleblower Edward Snowden walked out of his job at the NSA, with the last of dozens of USB keys he used to copy classified government documents recording the global surveillance practices of the US and its allies, he could not have imagined the impact that his actions would have.

The impact of what has come to be known as the “Snowden documents” has been felt the world over – from parliaments in Brazil and Germany, to boardrooms of companies across Silicon Valley; from courtrooms in the US and the UK, to the streets of Washington DC and Berlin. But perhaps the most significant ramifications of Snowden’s actions have been felt in the halls and chambers of the United Nations. In under two years the right to privacy, long-neglected, has risen to become the most significant, if contentious, human rights issue of this decade.

Privacy has long been one of the most important, embattled human rights. Privacy International (PI), an organisation devoted to promoting the right to privacy and fighting against unlawful surveillance, celebrates its 25th anniversary this year. PI was founded by Australian privacy activist Simon Davies in the years following his successful campaign against a 1986 Hawke government proposal to introduce a national identity card, the Australia Card. Over the past 25 years PI has fought against countless policies and laws designed to minimise individuals’ privacy and increase state control, from ID cards and biometric registration systems, to wiretapping proposals and controls on encryption software.

But over the past decade, there has been a tide of government measures around the globe that have put the right to privacy at serious risk. As digital technologies become ubiquitous and people increasingly live their lives online, the possibility to generate, create, track, retain, store and analyse information about individuals’ private thoughts, movements, conversations, shopping habits, relationships and preferences have increased exponentially.

While the private sector has developed increasingly novel ways to use technology and the internet to make our lives more convenient, information more accessible, and communication easier, this also poses a threat to privacy through the pervasive generation and storage of intimate data about customers. Governments have subsequently sought both overt and illicit access to that data, and have also developed their own mechanisms for tracking and monitoring individuals in the online world.

Today, the number of private and public sector entities that obtain and store our private information on a daily basis are almost too many to count. And many are hidden from view, making it difficult to hold them to account.

Technological advancements have quickly outpaced legal protections designed to restrain the actions of governments and companies so they cannot interfere with individuals’ privacy. As we learnt from Snowden’s revelations, countries have been manipulating vague and outdated legal frameworks to purportedly justify mass and invasive digital surveillance programmes.

Countries in the Five Eyes alliance and beyond have continued to consolidate and expand legal powers to monitor and track their populations online. In the past 12 months, Australia has legislated to expand the powers of ASIO to hack into computers and networks, apply mandatory data retention requirements on communication service providers, and criminalise the publication of national security material with the aim of suppressing whistleblowers and journalists. France, the UK and the Netherlands will all consider laws in the next year that will legitimise covert digital surveillance practices.

Despite this worrying trend among governments, Snowden’s revelations have had a significant impact on legal and political campaign movements, as well as on the development of norms around the right to privacy.

Right to Privacy at the UN

Pre-existing campaign efforts to garner greater attention to privacy in the UN Human Rights Council have been bolstered by the political fallout of allegations of NSA spying on Brazilian and German leaders. Brazil and Germany have spearheaded the elaboration of two UN General Assembly resolutions (in December 2013 and November 2014) reaffirming the primacy of the right to privacy and its status as “one of the foundations of a democratic society.” The 2013 resolution was the first UN instrument to grapple with privacy in more than 25 years; its predecessor was the Human Rights Committee’s General Comment No. 16 in 1989, written before the public adoption of the internet.

The push by Brazil and Germany at the General Assembly was reinforced by significant public movements, such as the Stop Watching Us campaign, that garnered 595 thousand signatories, and initiatives such as Reform Government Surveillance, a campaign from major internet companies to restrict government spying practices.

It was also supported by the reports of multiple international expert bodies and mechanisms speaking out against surveillance and in favour of reinforcing the right to privacy.

The UN High Commissioner on Human Rights, UN Special Rapporteurs on freedom of expression and counter-terrorism, the European Parliament’s LIBE Committee, and the Parliamentary Assembly of the Council of Europe have all condemned surveillance practices that endanger the fundamental right to privacy. In March 2015, the UN Human Rights Council voted to establish a dedicated UN Special Rapporteur on the right to privacy, to ensure that privacy doesn’t return to the sidelines of the human rights discourse.

Yet the fight to establish privacy as a critical human right and societal value is by no means won. Innumerable challenges are on the horizon, from the reauthorisation of the Patriot Act in the US in June 2015, to the likely forthcoming attempts to reintroduce data retention in the EU after it was declared invalid by the Court of Justice of the European Union in April 2014. States seem intent on limiting, and in some cases eradicating, the privacy of their populations.

Privacy campaigners have many more battles to fight. But now, at least, we have more tools in our bag, and reinforcements behind us. The strong statements of international bodies in support of privacy and the existence of a new Special Rapporteur will be essential tools for legal and policy campaign movements such as ours over the coming years.

Let’s hope it won’t be another 25 years before we see genuine and meaningful protections and reform.

Carly Nyst is Privacy International’s Legal Director, and leads PI’s engagement with international human rights mechanisms and humanitarian organisations.

Feature image: United Nations, Geneva. Falcon Photography/Flickr

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