COVID, State surveillance, smartphones, mega tech-corporations and artificial intelligence are only a few of the themes which will remain recurrent throughout the life of the mandate on privacy

​AFTERNOON

2 July 2021

Council Starts Interactive Dialogue with the Special Rapporteur on the Right to Privacy and Concludes Interactive Dialogue with the Working Group on Arbitrary Detention

The Human Rights Council this afternoon started an interactive dialogue with the Special Rapporteur on the right to privacy.  The Council also concluded its interactive dialogue with the Working Group on Arbitrary Detention.

Joseph Cannataci, Special Rapporteur on the right to privacy, said that as the inaugural Special Rapporteur on the right to privacy, he had sought to increase understanding of the right to privacy as fundamentally important for the autonomy and the full development of individuals throughout their lives, thus promoting a more holistic approach to the 1948 Universal Declaration of Human Rights’ article 22.  A great deal had been achieved during the past six years but much, much more remained to be done for the protection of privacy would forever remain a delicate matter where much hung in the balance in a technology-driven world and the particular challenges arising in the digital age of new and emerging technologies.  COVID, State surveillance, smartphones, mega tech-corporations and artificial intelligence were only a few of the themes which would remain recurrent throughout the life of the mandate.  He spoke about his six country visits.

Argentina, France, Germany, Republic of Korea, United Kingdom, and United States took the floor as countries concerned.

In the ensuing dialogue, some speakers expressed their regret that the reports on country visits had not been made available on time, underscoring the importance of timely reporting, active engagement and a vocal and independent voice in fulfilling the mandates of the Special Procedures.  Some speakers thanked the Special Rapporteur for his work, noting that the establishment of the mandate on privacy was important as this right was ever more relevant.

Speaking were the European Union, Latvia on behalf of a group of countries, Brazil on behalf of a group of countries, Liechtenstein, United Nations Children’s Fund, Germany, Indonesia, Brazil, Ecuador, Switzerland, Armenia, Togo, Malta, China, India, Lebanon, Venezuela, Egypt, Nepal, Pakistan, Holy See, Russian Federation, and Viet Nam.

At the beginning of the meeting, the Council concluded its interactive dialogue with the Working Group on Arbitrary Detention.

In the discussion, some speakers were alarmed that some States used drug charges to suppress the activities of human rights defenders, journalists, political opponents and other Government critics.  Some said that the approach to drug policy must be evidence based, and the evidence was clear: drug dependence was a multifactorial health condition, for which persons should receive care and support, rather than punishment.  Other speakers rejected the report completely, noting that drug-related issues did not fall under international human rights protocols - drug use was not a human right.  The report should have taken into account the diversity of the values, cultures, laws, and judicial systems of all the Member States.

Elina Steinerte, Chair-rapporteur of the Working Group on Arbitrary Detention, expressing appreciation to all those who had taken the floor, said the study had found that the so-called “war on drugs” had led to excessive incarceration.  Several States had engaged in disproportionate practices, by showing zeal in the application of treaties for instance that had led to human rights violations, including arbitrary detention.  She drew attention to detention in compulsory drug centres, which frequently lacked a harm reduction approach and failed to consider the distinction between drug use and drug addiction. 

Speaking were the European Union, Latvia on behalf of a group of countries, Switzerland on behalf of a group of countries, Libya, Portugal, Indonesia, France, Cuba, China, Algeria, Venezuela, United States, Egypt, Singapore, Saudi Arabia, Malaysia, Austria, Pakistan, Georgia, United Kingdom, Ukraine, Russian Federation, Philippines, Panama, Barbados, Belarus, Cambodia, and Iran.

The following civil society organizations also took the floor: International Harm Reduction Association (IHRA), IDPC Consortium.  Commission of the Churches on International Affairs of the World Council of Churches, Centro de Estudios Legales y Sociales (CELS) Asociación Civil, Amnesty International, CIVICUS - World Alliance for Citizen Participation, Asia Pacific Forum on Women, Law and Development, Conectas Direitos Humanos, Rencontre Africaine pour la defense des droits de l'homme, Asian Legal Resource Centre        .

Armenia, Algeria, Brazil, Indonesia, and Morocco took the floor in right of reply,

The webcast of the Human Rights Council meetings can be found here.  All meeting summaries can be found here.  Documents and reports related to the Human Rights Council’s forty-seventh regular session can be found here. 

The Human Rights Council will next meet in public on Monday, 5 July at 10 a.m. to hold the first panel of the annual full-day discussion on the human rights of women, followed by the continuation of the interactive dialogue with the Special Rapporteur on the right to privacy, and the presentation of reports under agenda item 3 on the administration of justice and on international cooperation in the field of human rights.

Interactive Dialogue with the Working Group on Arbitrary Detention

The interactive dialogue with the Working Group on Arbitrary Detention started this morning and a summary can be found here.

Discussion

Speakers were alarmed that some States used drug charges to suppress the activities of human rights defenders, journalists, political opponents, and other Government critics.  The approach to drug policy must be evidence-based, and the evidence was clear: drug dependence was a multifactorial health condition, for which persons should receive care and support, rather than punishment.  This was proven to reduce drug consumption, deaths caused by drug overdoses, HIV incidences and drug-related crime.  Speakers noted that the report failed to reflect the mutually reinforcing effectiveness of combining hard, soft, and smart approaches to this issue.  Other speakers rejected the report completely, noting that drug-related issues did not fall under international human rights protocols - drug use was not a human right.  The report should have taken into account the diversity of the values, cultures, laws, and judicial systems of all Member States.

Interim Remarks

ELINA STEINERTE, Chair-rapporteur of the Working Group on Arbitrary Detention, noted that the drugs issue was part of several of the Sustainable Development Goals.  Countering the world drug problem must conform to all human rights and fundamental freedoms.  Regarding the preparation of the report, a questionnaire was sent to States and other stakeholders.  Overall, 21 States, 6 national human rights institutions, and 27 civil society organizations had sent in submissions, and multiple consultations had been held in the aftermath.  An absolute prohibition of arbitrary deprivation of liberty applied to everyone, including those arrested for drug-related offences.  There was a need for all drug policies to serve a proportionate aim - imprisonment could only be used for serious offences.

Discussion

Some speakers said the Council was not the appropriate body to undertake such a study, which duplicated the work of more competent bodies in the United Nations system.  The geographic scope of the report was not balanced, they added.  Some speakers pointed out that the Working Group had remained silent in the face of the repression of protests against COVID-19 restrictions.  Urging a harm reduction approach, speakers said the human rights devastation brought by the war on drugs was at the centre of the Council’s agenda.  The report revealed the extent to which drug laws were used to target oppressed groups, such as women, lesbian, gay, bisexual, trans, intersex and gender diverse people, and ethnic and racial minorities.  People facing drug-related charges were sometimes subjected to torture or ill-treatment.  Some speakers said that more than 50 years of drug policies based on prohibition and criminalisation had left a legacy of violence, disease, mass incarceration, suffering and abuse across the world.  By using the recommendations contained in the Working Group’s report, States should start shifting away from prohibition and adopting new models of drug control that put the protection of people’s health and other human rights at the centre.

Concluding Remarks

ELINA STEINERTE, Chair-rapporteur of the Working Group on Arbitrary Detention, expressing appreciation to all those who had taken the floor, said the study had found that the so-called “war on drugs” had led to excessive incarceration.  Several States had engaged in disproportionate practices, by showing zeal in the application of treaties for instance, that had led to human rights violations, including arbitrary detention.  She drew attention to detention in compulsory drug centres, which frequently lacked a harm reduction approach and failed to consider the distinction between drug use and drug addiction.  The Working Group recommended that evidence-based and rights-based social and psychological support be provided as an alternative to such detention.  Noting that several speakers had asked about the dissemination of the study, the Chair-rapporteur said it would be shared with the Commission on Narcotic Drugs, the primary United Nations drug policy-making body, and with a wide range of regional partners.  All stakeholders should contribute to the dissemination of the study, and thus help uphold the absolute prohibition of arbitrary detention.

Interactive Dialogue with the Special Rapporteur on the Right to Privacy

Reports

The Council has before it the reports of the Special Rapporteur on the right to privacy (A/HRC/46/37) on “Artificial Intelligence and Privacy, and Children’s Privacy”, as well on his missions to Argentina (A/HRC/46/37/Add.5); France (A/HRC/46/37/Add.2); Germany (A/HRC/46/37/Add.3); the Republic of Korea (A/HRC/46/37/Add.6); the United Kingdom of Great Britain and Northern Ireland (A/HRC/46/37/Add.1); and the United States of America (A/HRC/46/37/Add.4).

Remarks by the President

NAZAHAT SHAMEEN KHAN, President of the Human Rights Council, recalled that this interactive dialogue had been originally scheduled to take place on 5 March 2021, during the forty-sixth session of the Human Rights Council.  However, in light of the fact that three of the six country visit reports – namely, those for Germany, the Republic of Korea and the United Kingdom of Great Britain and Northern Ireland - had not been submitted sufficiently in advance of their scheduled presentation to allow for them to be shared with the countries concerned, the interactive dialogue had been cancelled.  In August last year, a group of States had submitted a complaint to the then-President of the Council due to the fact that the Special Rapporteur, despite having conducted six country visits since the beginning of his mandate in 2016, had not presented any country reports to the Council.
  
In advance of the forty-sixth session, the country reports were made publicly available.  However, this was too late to allow for the minimum of four weeks consultation of the country concerned and the timely consideration by the Council.  In light of this, after thorough discussions, the Bureau had decided on 2 March 2021 to cancel the presentation by the Special Rapporteur on the right to privacy of his annual thematic report and country visit reports.  The Bureau had further agreed that the Special Rapporteur would be urged to submit the outstanding country visit reports prior to 15 April 2021 and had also expressed a strong dissatisfaction of the state of affairs and in particular, with the Special Rapporteur’s failure to fulfil his reporting obligations to the Council.  Prior to the 15 April deadline, the Special Rapporteur had submitted all of the outstanding country visit reports, thus the interactive dialogue with the Special Rapporteur could be organised for the present session of the Council. 

Presentation of the Reports

JOSEPH CANNATACI, Special Rapporteur on the right to privacy, regretted that the President of the Council had failed to circulate the lengthy correspondence they had had regarding the matter she had just broached.  Turning to his report on artificial intelligence and privacy, and children’s privacy, he said he could, with a suitably modest level of pride, say that each of the areas of work he had covered during his mandate had delivered substantial reports and recommendations to the United Nations and its Member States.  He had deployed innovative working methods, including the setting up of task forces with the participation of domain experts from every region.  As the inaugural Special Rapporteur on the right to privacy,  he had sought to increase understanding of the right to privacy as fundamentally important for the autonomy and the full development of individuals throughout their lives, thus promoting a more holistic approach to the 1948 Universal Declaration of Human Rights’ article 22.  This was particularly explored in the children's privacy report that he completed for the March 2021 session of the Council.

During his mandate, he had carried out official country visits in Argentina, France, Germany, Republic of Korea, the United Kingdom, and the United States.  When read together, the updated versions of the country visit reports provided useful examples of good practices as well as insights into the complexities, trials, and tribulations that privacy protection faced across all regions of the world.  These official visits had been complemented by a score of “unofficial visits”, often at the invitation of and mostly funded by Government entities within United Nations Member States keen to promote awareness and protection of privacy.  A great deal had been achieved during the past six years but much, much more remained to be done by what he hoped would be a long line of successors, for the protection of privacy would forever remain a delicate matter where much hung in the balance in a technology-driven world and the particular challenges arising in the digital age of new and emerging technologies.  COVID, State surveillance, smartphones, mega   tech-corporations and artificial intelligence were only a few of the themes which would remain recurrent throughout the life of the mandate.

Statements by Countries Concerned

Argentina, speaking as a country concerned, expressing its satisfaction with the visit, noted that the Special Rapporteur had acknowledged having received the contribution of the various interested parties and, in particular, of the national and provincial authorities.  Likewise, he had noted the safeguards and legal resources that protected the violation of the right to privacy in the country as among the best in South America.  Pointing out that important institutional reforms had been adopted by the new national government since December 2019, Argentina said it had adopted a series of measures for the protection of human rights during the COVID-19 pandemic, seeking to guarantee the population's right to access health services without discrimination while protecting its right to privacy and personal data.

France, speaking as a country concerned, thanked the Special Rapporteur for the report.  France promoted ethical and responsible use of artificial intelligence as well as in the work of the Council of Europe on artificial intelligence and human rights.  Together with Canada, France had launched the Global Partnership on Artificial Intelligence to promote the responsible use of the technology.  Recently, the National Commission on Information Communication Technology and Freedom had held a public consultation on the rights of minors in the digital environments to ensure their right to privacy, as France worked with partners to protect the national policy on the privacy of children in the digital world.  France took note of the recommendations following the visit.

Germany, speaking as a country concerned, noted that the report was presented nearly three years after the visit, and pointed out that reports on country visits could be an important source of recommendations but delays hampered their effectiveness.  Proportionality was enshrined in the German Constitution and applied as a general principle to all areas of public law; it did not need to be expressly included in all laws.  A new Independent Supervisory Council had been established and would become operative by January 2022.  It would ensure that the principle of proportionality was being respected and would oversee the technical intelligence collection.  Therefore, many of the recommendations contained in the report seemed overtaken by reforms made through the amended Act on the Federal Intelligence Service with regards to technical intelligence collection and oversight.

Republic of Korea, speaking as a country concerned, extended its appreciation for the discussions on privacy conducted during the Special Rapporteur’s visit to the Republic of Korea.  Considering that his visit had taken place nearly two years ago, the Republic of Korea regretted receiving the report later than they had expected.  It was, however, encouraging that the Special Rapporteur recognised the Korean Government’s efforts to promote the right to privacy and the reform measures taken so far.  For instance, measures had been taken that concerned intelligence agencies, including the National Intelligence Service and the National Police Agency, to prevent their activities from getting privacy intrusive.  The Government had also taken steps to reinforce the oversight of the agencies carrying out intelligence activities.  On COVID-19, the Government had been striving to avoid the disclosure of personally identifiable information or any other information non-essential for containing the spread of the virus.

United Kingdom, speaking as a country concerned, welcomed the report from the Special Rapporteur following his visit in 2018, and was pleased that he recognised the positive steps that the Government had taken to strengthen the safeguards on the right to privacy, and the oversight of investigatory powers more broadly, which he described as “more vigorous, robust and effective” when compared to his previous visits.  The United Kingdom was disappointed by the Special Rapporteur’s suggestion that “the system of having politicians involved in signing off on warrants of interception remains inherently open to abuse if a conflict of interest should arise as to whom it is being proposed be put under surveillance.”  All United Kingdom ministers were subject to a strict set of rules and principles which outlined the standards of conduct as set out in the Ministerial Code.

United States, speaking as a country concerned, said that in addition to Fourth Amendment protections, the United States took a strong, effective sectoral approach to privacy protection, with democratically elected legislatures at the state and federal levels enacting privacy laws to address privacy risks in specific situations and provide appropriate resources to enforce them.  This tailored approach to privacy improved the fit for particular industries and communities, increasing buy-in and rates of compliance, and maintaining the public trust.  Commending the Special Rapporteur for recognising that the United States system of privacy was not just a “law on the books, but law on the ground", the United States invited others to review its detailed response to the Special Rapporteur’s country report, which was posted on the United Nations’ website as an annex to the report.

Discussion

Some speakers expressed their regret that the Special Rapporteur’s reports on country visits were not made available on time, underscoring the importance of timely reporting, active engagement and a vocal and independent voice in fulfilling the mandates of the Special Procedures.  Some speakers thanked the Special Rapporteur for his work, noting that the establishment of the mandate on privacy was important as this right was ever more relevant.  Artificial intelligence solutions offered benefits, but also had the potential to infringe on people’s human rights.  Some speakers were concerned that these technologies could deepen discrimination through biases in databases that in turn led to biased results, and that the use of artificial intelligence in surveillance posed unprecedented risks.  The focus on children was welcomed - speakers agreed that the right to privacy and the right to be protected must both be given equal weight, calling on States to ensure that the processing of their data did not result in commercial exploitation and rights violations.

Interim Remarks

JOSEPH CANNATACI, Special Rapporteur on the right to privacy, noted that none of his reports had been late - there were no deadlines stipulated in the code of conduct, and he had used his own judgement on the best time to present his reports.  The fact that he could not present interim reports was a serious obstacle, given that all reports must have their own approach.  Mr. Cannataci said he had published detailed end of mission statements after his visits that were almost as detailed as the reports themselves, and that were used in many national and multilateral fora.  He had the utmost regard for his responsibilities, and as such wanted to make the reports as comprehensive and as up-to-date as possible.  Privacy was not a static subject, the information on privacy in a country was not immediately apparent; reports must be based on the evidence, and if it was only available 2 to 3 years after the fact, then the mandate holders should be able to modify their reports.

The Special Rapporteur praised the Korean Government for its willingness to change its approach to COVID-19 after re-evaluating the negative effects of its measures on privacy, and the United Kingdom for the continuing dialogue with the mandate throughout his tenure.  With regards to artificial intelligence, unfortunately, privacy had often been an afterthought at the technological design stage.  Countries must treat privacy engineering as a subject in its own right and educational systems must promote privacy by design.  There was a divergence between the autonomy allowed to children between different States.  Very often the phrase used in the legislation of some countries was “age appropriate”, which was subjective.  Children should be entitled to more of a say in the way their privacy was protected.  Education was paramount: children were becoming digital citizens at a very early age, and digital citizen education had to be started the minute children began touching tablets, phones, and computers.

Link: https://www.ungeneva.org/en/news-media/meeting-summary/2021/07/la-covid-19-la-surveillance-etatique-les-smartphones-les-mega

___________

For use of the information media; not an official record