Surveillance, freedom of expression and international law Dr. Ian Brown

Human rights in 21 st century “This is as much an issue of modernity as liberty. We are trying to fight 21st century crime by 19th century means. It hasn't worked. It won't work.” “I think these civil liberties arguments are a bit outdated.” –Tony Blair (2006; 2005) “advance passenger information, airline bookings and other travel data, passport and biometric data, immigration, identity and border records, criminal records, and other governmental and private sector data, including financial and telephone and other communication records… and in some cases the ability to apply data mining and pattern recognition software to databases, might well be the key to effective pre-emption in future terrorist cases.” –Sir David Omand (2009) p.9

International human rights law International Covenant on Civil and Political Rights (1966) §17: No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence §19: Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds Interpretation by the UN Human Rights Committee, UN High Commissioner for Human Rights, and UN Special Rapporteurs (on Freedom of Opinion and Expression; on the promotion and protection of human rights and fundamental freedoms while countering terrorism; on human rights and transnational corporations)

ICCPR signatories Data: UN High Commissioner for Human Rights; Graphic: WikiMedia

Freedom of expression and surveillance “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.” (Frank La Rue, Apr. 2013) “States may not, in the name of the struggle against espionage and terrorism, adopt whatever measures they deem appropriate” given “the danger such a law poses of undermining or even destroying democracy on the ground of defending it” (Klass and others v. Germany, no. 5029/71, § 49, )

Freedom of the media “The ability of reporters to report securely is intensely threatened by the collection of metadata” –Alan Rusbridger “I am terrified for journalists because its very hard to promise anonymity to sources” -Ethan Zuckerman “the right of journalists not to disclose their sources cannot be considered a mere privilege to be granted or taken away depending on the lawfulness or unlawfulness of their sources, but is part and parcel of the right to information, to be treated with the utmost caution.” (Nagla v. Latvia, no /10, §§ 97 and 101, )

Restrictions on rights must: 1.Be based on “law” – on published, clear and specific legal rules, the application of which is reasonably foreseeable; 2.Serve a legitimate aim in a democratic society – including law enforcement and protection of national security. Such limitations should not be abused for other ends, such as to protect a government from embarrassment or exposure of wrongdoing; 3.Be “necessary” and “proportionate” to that aim, and not impair the essence of the right; 4.Not involve discrimination based on race, colour, sex, language, religion, political or other opinion, national or social origin, nationality, property, birth or other status; 5.Not confer excessive discretion on the relevant authorities; 6.Be subject to effective (judicial) safeguards and remedies.

Special circumstances Restrictions “in time of war or other public emergency threatening the life of the nation … to the extent strictly required by the exigencies of the situation” may “not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin” must be “officially proclaimed” and notified to other parties in relation to terrorism (hostage taking, killings or serious physical violence undertaken for the purpose of provoking a state of terror or of compelling state action) and other serious breaches of public order “clear safeguards [for] the rights of political opposition parties, trade unions or human rights defenders” (UN HCHR) “terrorism does not trigger emergency powers” (UN SR)