Taking to the global stage: Dilma Rousseff, president of Brazil, was enraged to discover that the NSA was monitoring her office calls. Wikimedia: Roberto Stuckert Filho/PR. Creative Commons
On Wednesday, December 18th, the UN General Assembly was set to adopt a resolution on ‘the right to privacy in the digital age’. The text before member states was the result of a compromise crafted to overcome stiff resistance from the US and fellow members of the ‘five eyes’ surveillance alliance, Canada, the UK and Australia (New Zealand was not active in the negotiations), to an initial proposal from Brazil and Germany.
Although watered down, the resolution represents a significant achievement. The text puts the issue on the UN agenda: it is the first major statement by the organisation on privacy and surveillance in almost a quarter of a century.
More importantly, the resolution is a first step in a (probably long) process which human-rights defenders hope will ultimately result in internationally agreed legal curbs on the kind of mass surveillance the US and others have been carrying out domestically and internationally. The resolution’s political resonance is obvious: Brazil and Germany were understandably angry over the reported US spying on their leaders.
The main objection by the US (and reportedly also Australia, Canada and the UK) to the original proposal was its suggestion that extraterritorial surveillance—spying on foreign soil—could constitute a violation of the International Covenant on Civil and Political Rights. The US does not accept that it is obliged to respect the covenant abroad, taking the view that the rights it affords its own citizens don’t apply to foreigners outside its territory.
The resolution’s provision on ‘extraterritoriality’ was modified to bring the US and others on board and keep the nascent process on track: the direct link between foreign espionage and human-rights violations was broken. The US welcomed the amended text, accepting the link between the rights to privacy and freedom of expression.
The resolution still says however, in inimitable UNese, that the General Assembly is ‘deeply concerned at the negative impact that surveillance and/or interception of communications, including extraterritorial surveillance and/or interception of communications, as well the collection of personal data, in particular when carried out on a mass scale, may have on the exercise and enjoyment of human rights’. The US cannot ignore the fact that a considerable number of countries, as well as rights and privacy groups, strongly believe that when states conduct extraterritorial surveillance, thereby exerting control over the right to privacy and related rights of persons, they have obligations to respect those rights beyond their borders.
Nor can the US or any other country—including those like Cuba and North Korea which have supported the resolution as a political stick with which to beat Washington—gloss over the fact that the text also calls on countries to make sure any domestic surveillance or interception of communications or collection of personal data is in line with international human-rights law.
Real work begins
Following adoption of the resolution, the real work for rights and privacy advocates begins. It calls on the main UN rights official, the high commissioner for human rights, to report to the Human Rights Council and the General Assembly next year, on ‘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’.
That report will include views and recommendations and is expected to rely on a study by the UN’s expert on freedom of expression, Frank LaRue, widely considered to be ‘the most detailed and comprehensive statement to date of the principles that should apply in protecting human rights from state surveillance’. Among other issues, LaRue’s report reflects serious concern ‘with regard to the extra-territorial commission of human rights violations and the inability of individuals to know that they might be subject to foreign surveillance, challenge decisions with respect to foreign surveillance, or seek remedies’.
Diplomats and rights experts will start plotting a way forward in February in Geneva, Switzerland, at a meeting convened by Brazil. The issues are many and complex.
The US and the ‘five eyes’ may seem to have the most to lose from a move to check mass surveillance. Across the negotiating table, countries that routinely intercept the communications of dissidents, rights activists and political opponents will probably also fiercely oppose efforts to give full effect to the linked rights to privacy and freedom of expression in the digital age. Maintaining the delicate balance amid the competing interests of all the countries that supported the resolution will be among the most difficult parts of the process.
But at least the issue is on the UN’s front burner for now and the prospect for progress is real—even if not immediate.