No need for legal instrument on electronic surveillance and privacy

Published: 5 June 2018 Author: Stefan Talmon

Mass surveillance of telecommunications and internet traffic may violate the right to privacy set out in Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights. Triggered by whistle-blower Edward Snowden’s revelations of mass surveillance by the United States’ National Security Agency (NSA), Germany and Brazil tabled a resolution on the “The Right to Privacy in the Digital Age” in the Third Committee of the United Nations General Assembly. The German Ambassador introduced the draft resolution on 7 November 2013, stating:

“Over the past months […] reports about mass surveillance of private communications and the collection of personal data have alarmed people all over the world. They ask a legitimate question: Is there a right to privacy still protected effectively in our digital world? Today there seems to be hardly any technical limitation for accessing, storing or combining personal data. But, should everything that is technically feasible also be allowed? Where do we draw the line between legitimate security interests and the individual right to privacy? And how do we ensure that human rights are effectively protected both online and offline? Germany and Brazil believe that these complex and highly relevant questions require global answers. We therefore want to take this discussion to the most relevant international framework, namely the United Nations.”

The resolution, inter alia, affirmed that “the same rights that people have offline must also be protected online, in particular the right to privacy.” The resolution was unanimously approved by the Third Committee and later adopted without vote by the United Nations General Assembly.

In the following years, Germany and Brazil spearheaded efforts at the United Nations to protect the right to privacy with regard to electronic communications. In March 2015, at the initiative of the two countries, the Human Rights Council decided to appoint a special rapporteur on the right to privacy who was to make recommendations to ensure the promotion and protection of the right to privacy in the digital age and to promote principles and best practices at the international level.

In January 2018, the Special Rapporteur on the right to privacy presented a “Draft Legal Instrument on Government-led Surveillance and Privacy”. In his report to the Human Rights Council, the Special Rapporteur explained his proposal for a legal instrument as follows:

“16. The discussion and adoption of a legal instrument on surveillance and privacy within the United Nations could simultaneously achieve two main purposes by providing States:

(a)   A set of principles and model provisions for their integration into national legislations [sic] embodying and enforcing the highest principles of international human rights law, especially the right to privacy, when it comes to surveillance;

(b)   A number of options, based on international best practices, to balance security interests and concerns about surveillance with the protection of the right to privacy.

17. An instrument of some form is necessary, whether as soft law in the form of a recommendation or even, and more appropriately, given current states practice, as hard law as an international multilateral treaty.”

The 37-page strong draft legal instrument comprised a preamble, 17 articles and commentary. It established numerous requirements for, and imposed wide-ranging restrictions on government-led electronic surveillance. For example, the draft provided that no new surveillance system could be deployed before an initial human rights impact assessment was carried out by an independent external assessment body with the objective of ensuring that privacy and other human rights were protected in accordance with the provisions of this instrument.

Presenting his report at meeting of the Human Rights Council on 6 March 2018, the Special Rapporteur stated:

“It is my strong view that an instrument [on surveillance and privacy] of some form is necessary, whether as soft law in the form of a recommendation or possibly more appropriately, as an international multilateral treaty. The latter solution would go some way towards creating a clear and comprehensive legal framework on privacy and surveillance in cyberspace which would operationalise the respect of the right to privacy, domestically and across borders.”

During the ensuing interactive dialogue on the Rapporteur’s report, the proposal for a legal instrument did not meet with much support. Brazil, which also spoke on behalf of Germany, considered a new binding legal instrument on surveillance “unnecessary” and declared:

“International law provides a clear, universally applicable framework to support and protect the right to privacy.”

In reply to a parliamentary question on why Germany would not accede to an international treaty on surveillance and privacy, the Minister of State at the Federal Foreign Office, Niels Annen, stated:

“The Federal Government does not see any gap in international law in this area.”

He also added that the Federal Government was not aware of any country which would be prepared to accede to such a treaty.

It seems highly unlikely that the Special Rapporteur’s proposal of a binding legal instrument will be carried through to fruition by the Human Rights Council. A similar but in parts also more wide-ranging proposal was made at the regional level by the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe in 2015. The proposed “Intelligence Codex” was to regulate intelligence gathering activities among European States. The Codex was “to lay down precisely what is allowed and what is prohibited between allies and partners;” it was to “clarify what intelligence agencies can do, how they can co-operate, and how allies should refrain from spying on each other. Nothing came out of this initiative.

While a binding international agreement on surveillance and privacy, if widely ratified, would undoubtedly enhance the protection of the right to privacy of individuals, it would also severely impair the intelligence-gathering capacity of law enforcement and security agencies. In the age of international terrorism States must strike a fine balance between individual human rights and the legitimate security interests of society. While Germany is and will remain a strong supporter of the right to privacy in the digital age, this support has its limits. For the moment, Germany seems to have come down on the side of national security.

Category: Human rights

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  • Stefan Talmon

    Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.

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