الملاحظات الافتتاحية التي أدلت بها السيدة نافي بيلاي، مفوضة الأمم المتحدة السامية لحقوق الإنسان، في حلقة الخبراء الدراسية: الحق في الخصوصية في العصر الرقمي، 24 شباط/فبراير 2014، القاعة 21، قصر الأمم، جنيف

Excellencies, distinguished delegates, ladies and gentlemen,

I thank the Permanent Missions of Austria, Brazil, Germany, Liechtenstein, Mexico, Norway and Switzerland for inviting me to open this expert-level discussion and the Geneva Academy on International Humanitarian Law and Human Rights for facilitating this meeting.

Introduction and context

Digital communications technologies have become part of the very fabric of our everyday life. IT innovations are dramatically improving real-time communication and information-sharing. By improving access to information and facilitating global debate, they foster democratic participation. By amplifying the voice of human rights defenders and helping to expose abuses, these powerful technologies offer the promise of improved enjoyment of human rights.

But we have also seen how these new technologies are vulnerable to mass electronic surveillance and interception. We have also seen how new technologies are being developed covertly, often to facilitate these practices, with chilling efficiency. Such surveillance threatens individual rights – including to privacy and to freedom of expression and association – and inhibits the free functioning of a vibrant civil society.

Recent developments

The side-event that some of you attended at the Human Rights Council last September addressed concerns over the broad scope of security surveillance regimes and the potential for intrusions that modern technologies used in this context can facilitate.

Since then, there have been significant developments. Revelations of the nature and scope of digital communications surveillance have continued to surface. Inquiries at national and regional levels are gathering information on electronic mass surveillance, as well as on the collection and storage of personal data, so as to assess its impact on individuals within and across jurisdictions.

Civil society groups have organized campaigns against mass electronic surveillance. Courts at national and regional levels are being pushed to examine the legality of electronic surveillance policies and measures. Discussions have taken place among governments, businesses, private citizens, non-governmental organizations and academic experts seeking better understanding of modern communications surveillance and its impact on the privacy rights of individuals. The debate has also engaged the UN human rights system, including the UN Special Rapporteur on the right to freedom of opinion and expression, and the UN Special Rapporteur on human rights and fundamental freedoms while countering terrorism, whose participation here today I very much welcome.

In December of last year, Member States of the General Assembly adopted a resolution without a vote expressing their deep concern at the negative impact that surveillance and interception of communications may have on human rights. The General Assembly affirmed that the rights held by people offline must also be protected online, and it called upon all States to respect and protect the right to privacy in digital communication. The General Assembly resolution called on all States to review their procedures, practices and legislation related to communications surveillance, interception and collection of personal data. It emphasized the need for States to ensure the full and effective implementation of their obligations under international human rights law.

This expert seminar will provide an opportunity for a substantive exchange among experts on these issues. Here we have a welcome opportunity to share good practices, drawing on the wealth of experiences in this room.

International legal framework

Excellencies, ladies and gentlemen,

As General Assembly resolution 68/167 recalls, international human rights law provides the universal framework against which any interference in individual privacy rights must be assessed. The International Covenant on Civil and Political Rights, to date ratified by 167 States, provides that no one shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation. It further states that “Everyone has the right to the protection of the law against such interference or attacks.”

Other international human rights instruments contain similar provisions. For their part, regional and national laws reflect the right of all people to respect for their private and family life, home and correspondence, or the right to recognition and respect for their dignity, personal integrity or reputation.

In other words, there is universal recognition of the fundamental importance, and enduring relevance, of the right to privacy and of the need to ensure that it is safeguarded, in law and in practice. While the right to privacy under international human rights law is not absolute, any instance of interference must be subject to a careful and critical assessment of its necessity, legitimacy and proportionality.

Challenges to implementation

In my statement during the Human Rights Council side-event last September I identified several challenges that may need to be further explored in applying this legal framework. These challenges remain relevant, so permit me please briefly to touch upon them again today.

National legislative frameworks, oversight and enforcement

The first of these challenges lies in the way in which legislative, administrative or judicial authorities guarantee and enforce the right to privacy at the national level. Targeted surveillance measures, when implemented in compliance with international human rights norms and standards, can be a necessary and effective means for law enforcement or national security purposes. But I would like to raise a number of issues that I believe will benefit from further discussion among the many experts in this room.

To start with, we must not neglect the broader picture. Ensuring the protection of individuals against any unlawful or arbitrary interference resulting from surveillance measures demands the presence of effective national legal frameworks. There are gaps where national legislation has not been adopted to match developments in communications technology and in the surveillance measures that these developments have facilitated.

In addition, a lack of effective oversight and review to monitor compliance and enforcement contributes to a lack of accountability for arbitrary or unlawful intrusions on the right to privacy. We know now from experience that internal safeguards without independent, external monitoring are ineffective against the abuse of surveillance methods.

Additional concerns are raised where communications data is accessed or intercepted through extraterritorial mass surveillance, or where surveillance affects a foreign national unprotected by domestic legislation, even where such legislation exists.

How is privacy defined?

Another challenge relates to the rapid and significant advances in communications and information technology, and a blurring of lines between the public and private sphere.

Excellencies, ladies and gentlemen,

As civic life increasingly is conducted online in this digital age, some have questioned the relevance of the notion of privacy. Some have suggested that the conveyance and exchange of personal information via electronic means is part of a conscious compromise. Individuals voluntarily surrender information about themselves and their relationships in return for digital access to goods, services and information. It is further suggested that, given this voluntary deal between providers and consumers, the accessing and interception by governments through mass security surveillance may therefore not amount to an infringement on the privacy of affected individuals.

However, these approaches reveal a limited appreciation of the right to privacy as reflected in binding legal instruments, and of the legitimate parameters for security surveillance. They raise critical questions that require careful further attention and discussion.   This includes consideration of the safeguards required for the collection, storage and use of digital data, starting with the means and mechanisms through which users consent to share this data, all the way up to the institutional checks and balances in national oversight regimes.

What parameters for national security surveillance?

How do we define the legitimate parameters for national security surveillance?  Indeed, States may use targeted surveillance measures provided for example that such surveillance is case-specific, and on the basis of a warrant issued by a judge on showing of probable cause or reasonable grounds.  However, the scope of national security surveillance in many jurisdictions has expanded significantly in recent years. Rapid advances in technology in areas including data collection, retention, processing and analysis also have dramatically increased the ability and capacity of national security agencies to conduct surveillance and to gather information on individuals through data mining.

At the same time, the secretive nature of security surveillance in many places inhibits the ability of legislatures, judicial bodies and the public to scrutinize State powers. This lack of transparency, together with a lack of clear and appropriate limitations to surveillance policies and practices, creates serious obstacles to ensuring that these powers are not used in an arbitrary or indiscriminate manner.

What about the private sector?

Finally, let me address the responsibility of businessesto respect privacy rights in the digital age. The Guiding Principles on Business and Human Rights, endorsed by the Human Rights Council in 2011, set out a global standard for preventing and addressing adverse impact on human rights linked to business activity. There have been important multi-stakeholder efforts to clarify the application of the Guiding Principles in the communications and information technology sector, yet challenges remain. Businesses may be required, under domestic legislation, to comply with requests by government for access to data. Yet business enterprises that supply data or user information to a State that uses it in turn to infringe on privacy or restrict freedom of expression risk making themselves complicit in human rights abuses.

I am heartened to see that some businesses in the digital communications sector are actively pushing States to be more transparent about what data they are requiring businesses to share, while also advocating for more stringent checks on government access to data. Still, we know that many enterprises comply with the requests of governments without first questioning their own responsibilities, and that some supply surveillance and monitoring technology to States that are known to use that technology to infringe on the right to privacy.

Addressing these many challenges demands the engagement and commitment of all stakeholders, including business enterprises, governments, industry- and multi-stakeholder initiatives, and civil society.

Excellencies, ladies and gentlemen,

Through the adoption of resolution 68/167, the General Assembly has requested that I prepare a report on these matters. The report is to examine, in the words of the resolution, “the protection and promotion of the right to privacy in the context of domestic and extraterritorial surveillance and/or interception of digital communications and collection of personal data, including on a mass scale”. The report will be presented to the Human Rights Council at its twenty-seventh session later this year and to the General Assembly at its sixty-ninth session.

To prepare the report, my Office has been conducting research, consulting with various stakeholders, and liaising with partners within and beyond the UN system. Through a written call for inputs, the Office will reach out to all interested parties to share information and perspectives on the issues raised in resolution 68/167. I encourage all stakeholders that wish to share information to respond to this call. We will endeavour to make the input we receive available for public consultation on a dedicated page on the OHCHR website.

I thank you, and look forward to hearing the outcome of your discussions.