CHAPTER I

INTRODUCTION

“The promotion and protection of human rights for all and the rule of law is essential to all components of the Strategy, recognizing that effective counter-terrorism measures and the promotion of human rights are not conflicting goals, but complementary and mutually reinforcing”

United Nations Global Counter-Terrorism Strategy(General Assembly resolution 60/288, annex)

Background of the Study

The National Security Agency's mass surveillance is just the beginning.

Documents from Edward Snowden show that the intelligence agency is arming

America for future digital wars -- a struggle for control of the Internet that is

already well underway.1

For years, there’s been ample evidence that authoritarian governments

around the world are relying on technology produced by American, Canadian,

and European companies to facilitate human rights abuses.  From software that

enables the filtering and blocking of online content to tools that help

governments spy on their citizens, many such companies are actively serving

autocratic governments as "repression’s little helper."2

The reach of these technologies is astonishingly broad: governments

can listen in on cell phone calls, use voice recognition to scan mobile networks,

read emails and text messages, censor web pages, track a citizen’s every

movement using GPS, and can even change email contents while en route to a

recipient. Some tools are installed using the same type of malicious malware

and spyware used by online criminals to steal credit card and banking

information. They can secretly turn on webcams built into personal laptops and

microphones in cell phones not being used. And all of this information is filtered 1 http://www.spiegel.de/international/world/new-snowden-docs-indicate-scope-of-nsa-preparations-for-cyber-battle-a-1013409.html. Accessed on March 2, 2015, at 1.2 https://www.eff.org/issues/mass-surveillance-technologies Accessed on March 30, 2015.

1

and organized on such a massive scale that it can be used to spy on every

person in an entire country.3

This is a phenomenon that spans the globe and implicates dozens of

corporations.  Over the past year, and partly in response to the uprisings that

have swept the Arab world, concerns about these exports have been amplified

in media reports and by digital rights organizations, sparking a debate as to the

appropriate course of action.4

Digital communications technologies, such as the Internet, mobile

smartphones and WiFi-enabled devices, have become part of everyday life. By

dramatically improving access to information and real-time communication,

innovations in communications technology have boosted freedom of expression,

facilitated global debate and fostered democratic participation. By amplifying the

voices of human rights defenders and providing them with new tools to

document and expose abuses, these powerful technologies offer the promise of

improved enjoyment of human rights. As contemporary life is played out ever

more online, the Internet has become both ubiquitous and increasingly intimate.5

In the digital era, communications technologies also have enhanced the

capacity of Governments, enterprises and individuals to conduct surveillance,

interception and data collection. As noted by the Special Rapporteur on the right

to freedom of expression and opinion, technological advancements mean that

the State’s effectiveness in conducting surveillance is no longer limited by scale

or duration. Declining costs of technology and data storage have eradicated

financial or practical disincentives to conducting surveillance. The State now has

a greater capability to conduct simultaneous, invasive, targeted and broad-scale

surveillance than ever before.1 In other words, the technological platforms upon

3 Id.4 Id.5 http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session27/Documents/A.HRC.27.37_en.pdf. Accessed on March 30, 2015, at 3.

2

which global political, economic and social life are increasingly reliant are not

only vulnerable to mass surveillance, they may actually facilitate it. 6

Deep concerns have been expressed as policies and practices that

exploit the vulnerability of digital communications technologies to electronic

surveillance and interception in countries across the globe have been exposed.

Examples of overt and covert digital surveillance in jurisdictions around the world

have proliferated, with governmental mass surveillance emerging as a

dangerous habit rather than an exceptional measure. Governments reportedly

have threatened to ban the services of telecommunication and wireless

equipment companies unless given direct access to communication traffic,

tapped fibre-optic cables for surveillance purposes, and required companies

systematically to disclose bulk information on customers and employees.

Furthermore, some have reportedly made use of surveillance of

telecommunications networks to target political opposition members and/or

political dissidents. There are reports that authorities in some States routinely

record all phone calls and retain them for analysis, while the monitoring by host

Governments of communications at global events has been reported. Authorities

in one State reportedly require all personal computers sold in the country to be

equipped with filtering software that may have other surveillance capabilities.

Even non-State groups are now reportedly developing sophisticated digital

surveillance capabilities. Mass surveillance technologies are now entering the

global market, raising the risk that digital surveillance will escape governmental

controls. 7

Concerns have been amplified following revelations in 2013 and 2014

that suggested that, together, the National Security Agency in the United States

of America and General Communications Headquarters in the United Kingdom

6 Id.7 Id.

3

of Great Britain and Northern Ireland have developed technologies allowing

access to much global internet traffic, calling records in the United States,

individuals’ electronic address books and huge volumes of other digital

communications content. These technologies have reportedly been deployed

through a transnational network comprising strategic intelligence relationships

between Governments, regulatory control of private companies and commercial

contracts.8

Following on the concerns of Member States and other stakeholders at

the negative impact of these surveillance practices on human rights, in

December 2013 the United Nations General Assembly adopted resolution

68/167, without a vote, on the right to privacy in the digital age. In the resolution,

which was co-sponsored by 57 Member States, the Assembly affirmed that the

rights held by people offline must also be protected online, and called upon all

States to respect and protect the right to privacy in digital communication. It

further called upon all States to review their procedures, practices and legislation

related to communications surveillance, interception and collection of personal

data, emphasizing the need for States to ensure the full and effective

implementation of their obligations under international human rights law.9

The exponential growth in States’ technological capabilities over

the past decade has improved the capacity of intelligence and law

enforcement agencies to carry out targeted surveillance of suspected

individuals and organizations. The interception of communications

provides a valuable source of information by which States can

investigate, forestall and prosecute acts of terrorism and other serious

crime. Most States now have the capacity to intercept and monitor

calls made on a landline or mobile telephone, enabling an individual’s

8 Id.9 Id.

4

location to be determined, his or her movements to be tracked

through cell site analysis and his or her text messages to be read and

recorded. Targeted surveillance also enables intelligence and law

enforcement agencies to monitor the online activity of particular

information stored on them. An increasing number of States are

making use ofmalware systems that can be used to infiltrate an

individual’s computer or smartphone, to override its settings and to

monitor its activity. Taken together, these forms of surveillance

provide a mosaic of data from multiple sources that can generate

valuable intelligence about particular individuals or organizations. 10

The common feature of these surveillance techniques is that

they depend upon the existence of prior suspicion of the targeted

individual or organization. In such cases, it is the almost invariable

practice of States to require some form of prior authorization (whether

judicial or executive), and in some States there is an additional tier of

ex post facto independent review. In most States, therefore, there is

at least one opportunity (and sometimes more than one) for scrutiny

of the information alleged to give rise to the suspicion, and for an

assessment of the legality and proportionality of surveillance

measures by reference to the facts of a particular case. With targeted

surveillance, it is possible to make an objective assessment of the

necessity and proportionality of the contemplated surveillance,

weighing the degree of the proposed intrusion against its anticipated

value to a particular investigation.11

10 https://firstlook.org/theintercept/document/2014/10/15/un-report-human-rights-terrorism/. Accessed on March 7, 2015, at 4.11 Id, at 5.

5

The dynamic pace of technological change has, however,

enabled some States to secure bulk access to communications and

content data without prior suspicion. Relevant authorities in these

States are now able to apply automated “data mining” algorithms to

dragnet a potentially limitless universe of communications traffic. By

placing taps on fibre-optic cables through which the majority of digital

communications travel, relevant States have thus been able to

conduct mass surveillance of communications content and metadata,

providing intelligence and law enforcement agencies with the

opportunity to monitor and record not only their own citizens’

communications, but also the communications of individuals located in

other States. This capacity is typically reinforced by mandatory data

retention laws that require telecommunications and Internet service

providers to preserve communications data for inspection and

analysis. The use of scanning software, profiling criteria and specified

search terms enables the relevant authorities then to filter vast

quantities of stored information in order to identify patterns of

communication between individuals and organizations.12

States with high levels of Internet penetration can thus gain access to the

telephone and e-mail content of an effectively unlimited number of users and

maintain an overview of Internet activity associated with particular websites. All

of this is possible without any prior suspicion related to a specific individual or

organization. The communications of literally every Internet user are potentially

open for inspection by intelligence and law enforcement agencies in the States

concerned. This amounts to a systematic interference with the right to respect

12 Id.

6

for the privacy of communications, and requires a correspondingly compelling

justification. 13

From a law enforcement perspective, the added value of mass

surveillance technology derives from the very fact that it permits the surveillance

of the communications of individuals and organizations that have not previously

come to the attention of the authorities. The public interest benefit in bulk access

technology is said to derive precisely from the fact that it does not require prior

suspicion. The circularity of this reasoning can be squared only by subjecting the

practice of States in this sphere to the analysis mandated by Article 17 of the

International Covenant on Civil and Political Rights.14

Mass digital surveillance was mainly justified by various States to protect

national security and as a means to fight terrorism. The justification was further

aggravated by the 9/11 attacked in the United States.

On the morning of September 11, 2001, the Al-Qaeda terrorists hijacked

four United States commercial airliners. Thousands of innocent people were

killed, and the twin towers of the World Trade Center and a portion of the

Pentagon were deliberately destroyed. It was probably the worst attack on the

U.S. soil in modern history, perpetrated against the defenseless civilians, not

merely to end lives, but to disrupt and end a way of life.15 Every nation, in every

region, had a decision to make, for in the words of President George Bush,

“either you are with us, or you are with the terrorists.”16

A coalition of freedom and peace loving nations was formed and a

crusade against the ‘axis of evil’ emerged for after all, “it is not just America’s

13 Id.14 Id, at 6.15Balderama, Gilbert D, Dénouement of the Human Security Act: Tremors in the Turbulent Odyssey of Civil Liberties, at 2. http://ustlawreview.com/pdf/vol.LII/Denoument of the Human Security Act.pdf. Accessed on March 5, 2014 citing the Address of President George Bush to the Joint Session of Congress and the American People, September 20, 2001. 16 Id, at 3

7

fight. And what is at stake is not just America’s freedom. It is the world’s fight, a

fight against civilization. It is the fight of all who believe in progress and

pluralism, tolerance and freedom.”17

In a borderless fight against terror and in the name of freedom and

democracy, anti-terrorism laws were enacted by different states in the world.18

However, some of these anti-terrorism laws and measures have been a

major concern of international bodies as jeopardizing fundamental human rights

protection. The leaders of the states, found themselves in war not just against

the terrorists but worse, against their very own people whom they were and are

defending for. Trading diplomacy for war, governments seem to have forgotten

that persuasion and not persecution is the means for winning the allegiance of

free men.19

Problem Statement

Whether mass digital surveillance for counter-terrorism violates the right

to privacy under Article 17 the International Covenant on Civil and Political

Rights.

Definition of Terms

The following terms are defined based on the usage of the words in this

study:

Privacy – the presumption that individuals should have an area

of personal autonomous development, interaction and liberty free

from State intervention and excessive unsolicited intrusion by other

uninvited individuals20

17 Id.18 Id.19 Balderama, at 4.20 https://firstlook.org/theintercept/document/2014/10/15/un-report-human-rights-terrorism/, Accessed on March 7, 2015, at 12.

8

Mass surveillance – the intricate surveillance of an entire or a

substantial fraction of a population. The surveillance is often carried out by

governments or governmental organisations, but may also be carried out by

corporations, either on behalf of governments or at their own initiative.21

Significance of the Study

This study is important to the researcher in her studies on public

international law and human rights. The readers of this study will also be aware

of international laws and issues affecting their rights and how they can

safeguard these rights.

Scope and Limitations

The study focused on the current mass surveillance using modern

technology such as the internet by States in order to counter terrorism and its

possible violation of the rights to privacy of persons under Article 17 of

International Covenant on Civil and Political Rights.

This study was primarily constrained with time as the researcher is

presently employed and studying law at the same time. Also, the research

period was limited to one semester only so the research evaluation and result

may not be that exhaustive.

Methodology

This study is both a policy research and an evaluation research. It is also

both descriptive and analytical in character. Relevant literatures and

jurisprudence on the topic were also researched and presented in this paper.

Most references were taken from the internet and books on constitutional and

international laws.

21 http://en.wikipedia.org/wiki/Mass_surveillance. Accessed on March 30, 2015.

9

CHAPTER II

REVIEW OF RELATED LITERATURE

Terrorism

The US Department of Defense Dictionary of military terms defines

terrorism as the calculated use of unlawful violence or threat of unlawful violence

to inculcate fear; intended to coerce or to intimidate governments or societies in

the pursuit of goals that are generally political, religious, or ideological.22

However, there is no official definition of terrorism agreed on throughout the

world, and definitions tend to rely heavily on who is doing the defining and for

what purpose. Some definitions focus on terrorist tactics to define the term, while

others focus on the actor.23

Terrorism is commonly understood to refer to acts of violence

that target civilians in the pursuit of political or ideological aims. In

legal terms, although the international community has yet to adopt a

comprehensive definition of terrorism, existing declarations,

resolutions and universal “sectoral” treaties relating to specific aspects

of it define certain acts and core elements. In 1994, the General

Assembly’s Declaration on Measures to Eliminate International

Terrorism, set out in its resolution 49/60, stated that terrorism includes

“criminal acts intended or calculated to provoke a state of terror in the

general public, a group of persons or particular persons for political

purposes” and that such acts “are in any circumstances unjustifiable,

whatever the considerations of a political, philosophical, ideological,

22 Chester B. Cabalza Deconstructing Human Security in the Philippines. Accessed on March 5, 2014, at 4 citing Definitions of Terrorism, http://terrorism.about.com/od/whatisterroris1/ss/DefineTerrorism_4.htm, accessed on 15 February 2011.23 Id., at 4, citing Dr Amy Zalman, PhD, former About.com Guide, text can be found at http://terrorism.about.com/od/whatisterroris1/ss/DefineTerrorism.htm.

10

racial, ethnic, religious or other nature that may be invoked to justify

them.” 24

Ten years later, the Security Council, in its resolution 1566

(2004), referred to “criminal acts, including against civilians,

committed with the intent to cause death or serious bodily injury, or

taking of hostages, with the purpose to provoke a state of terror in the

general public or in a group of persons or particular persons, intimidate

a population or compel a Government or an international organization

to do or to abstain from doing any act”. Later that year, the Secretary-

General’s High-level Panel on Threats, Challenges and Change

described terrorism as any action that is “intended to cause death or

serious bodily harm to civilians or noncombatants, when the purpose of

such an act, by its nature or context, is to intimidate a population, or to

compel a Government or an international organization to do or to

abstain from doing any act…”25

Whatever the definition, as the Secretary-General recommended in his

report Uniting Against Terrorism, “ensuring the defence of human rights is

inherent and essential to any counter-terrorism strategy.” In their 2006 Strategy

to combat terrorism, UN Member States stated that they must comply with their

obligations under international law, in particular human rights law, refugee law

and international humanitarian law, on the basis of the General Assembly

resolution 60/158 of December 16, 2005, which provides the fundamental

framework for the “Protection of human rights and fundamental freedoms while

countering terrorism.” States Parties to the International Covenant on Civil and

Political Rights (ICCPR), like the Republic of the Philippines, are more

particularly under the obligation to ensure that measures taken to implement

24 http://www.ohchr.org/Documents/Publications/Factsheet32EN.pdf. Accessed on March 30, 2015, at 5.25 Id, at 6.

11

Security Council Resolutions on terrorism are in full conformity with the

Covenant. They are requested in particular to ensure, among others, that the

definition of terrorism does not lead to abuse.26

Impact of Terrorism on Human Rights

Terrorism aims at the very destruction of human rights, democracy and

the rule of law. It attacks the values that lie at the heart of the Charter of the

United Nations and other international instruments: respect for human rights; the

rule of law; rules governing armed conflict and the protection of civilians;

tolerance among peoples and nations; and the peaceful resolution of conflict.27

Terrorism has a direct impact on the enjoyment of a number of human

rights, in particular the rights to life, liberty and physical integrity. Terrorist acts

can destabilize Governments, undermine civil society, jeopardize peace and

security, threaten social and economic development, and may especially

negatively affect certain groups. All of these have a direct impact on the

enjoyment of fundamental human rights.28

International and regional human rights law makes clear that States have

both a right and a duty to protect individuals under their jurisdiction from terrorist

attacks. This stems from the general duty of States to protect individuals under

their jurisdiction against interference in the enjoyment of human rights. More

specifically, this duty is recognized as part of States’ obligations to ensure

respect for the right to life and the right to security.29

In addition, international and regional human rights law has recognized

that, in specific circumstances, States have a positive obligation to take

26 Mouloud, at 18-19, citing Uniting against terrorism: recommendations for a global counter-terrorism strategy, Doc. A/60/825, para. 110.27 http://www.ohchr.org/Documents/Publications/Factsheet32EN.pdf. Accessed on March 30, 2015, at 7.28 Id. 29 Id.

12

preventive operational measures to protect an individual or individuals whose life

is known or suspected to be at risk from the criminal acts of another individual,

which certainly includes terrorists. Also important to highlight is the obligation on

States to ensure the personal security of individuals under their jurisdiction where

a threat is known or suspected to exist. This, of course, includes terrorist

threats.30

30 Id.

13

CHAPTER III

DISCUSSION

Terrorism has a direct impact on the enjoyment of human rights. As such,

States have a duty to take effective counterterrorism measures. Just as terrorism

impacts on human rights and the functioning of society, so too can measures

adopted by States to counter terrorism. Because terrorism has a serious impact

on a range of fundamental human rights, States have not only a right but a duty

to take effective counter-terrorism measures. Effective counter-terrorism

measures and the protection of human rights are complementary and mutually

reinforcing objectives which must be pursued together as part of States’ duty to

protect individuals within their jurisdiction.31 Not only is the promotion and

protection of human rights essential to the countering of terrorism, but States

have to ensure that any counterterrorism measures they adopt also comply with

their international human rights obligations.32 The imposition of a limitation on

rights and freedoms for the purpose of countering terrorism, but by ineffective

means, is unlikely to be justifiable. In assessing the impact of a counterterrorism

measure on rights and freedoms, consideration must be given, case by case, to

the level to which it limits the right or freedom, and also to the importance and

degree of protection offered by the human right being limited.33

Article 12 of the Universal Declaration of Human Rights provides that “no

one shall be subjected to arbitrary interference with his privacy, family, home or

correspondence, nor to attacks upon his honour and reputation. Everyone has

the right to the protection of the law against such interference or attacks.” The

International Covenant on Civil and Political Rights provides in Article 17 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

31 http://www.ohchr.org/Documents/Publications/Factsheet32EN.pdf. Accessed on March 30, 2015, at 19.32 Id, at 21.33 Id. at 26.

14

reputation”. It further states that “everyone has the right to the protection of the

law against such interference or attacks.”

The duty to respect the privacy and security of communications

implies that individuals have the right to share information and ideas

with one another without interference by the State (or a private actor),

secure in the knowledge that their communications will reach and be

read by the intended recipients alone. The right to privacy also

encompasses the right of individuals to know who holds information

about them and how that information is used.34

Article 17 of the International Covenant on Civil and Political

Rights prohibits States parties from interfering with the privacy of

those within their jurisdiction and requires them to protect those

persons by law against arbitrary or unlawful interference with their

privacy. Privacy includes information about an individual’s identity, as

well as the private life of the person. 35

Article 17 of the International Covenant on Civil and Political

Rights is the most important legally binding treaty provision

guaranteeing the right to privacy at the universal level. Other

international human rights instruments contain similar provisions; and

laws at the regional and national levels also reflect the right of all

people to respect for their private and family life, home and

correspondence.36

The right to privacy is not, however, an absolute right. Once an

individual is under suspicion and subject to formal investigation by

34 https://firstlook.org/theintercept/document/2014/10/15/un-report-human-rights-terrorism/, Accessed on March 7, 2015, at 12.35 http://www.ohchr.org/Documents/Publications/Factsheet32EN.pdf. Accessed on March 30, 2015, at 45.36 https://firstlook.org/theintercept/document/2014/10/15/un-report-human-rights-terrorism/, Accessed on March 7, 2015, at 12.

15

intelligence or law enforcement agencies, that individual may be

subjected to surveillance for entirely legitimate counter-terrorism and

law enforcement purposes. Although article 17 of the Covenant does

not contain a specific limitation clause outlining the circumstances in

which interference with the right to privacy may be compatible with

the Covenant, it is universally understood as permitting such measures

providing that (a) they are authorized by domestic law that is

accessible and precise and that conforms to the requirements of the

Covenant, (b) they pursue a legitimate aim and (c) they meet the tests

of necessity and proportionality.37

States have for a long time provided their security intelligence

services with powers of surveillance, including wiretapping and the use

of tracking devices. Some States have significantly extended these

surveillance powers in recent years. All of these practices involve the

collection of information about a person. They therefore limit the

privacy of such persons, as well as raising questions about how the

data are to be protected. Interference with privacy also arises in the

security screening and searching of persons.38

Any act which has an impact on a person’s privacy must be

lawful, i.e., it must be prescribed by law. This means that any search,

surveillance or collection of data about a person must be authorized by

law. The extent to which this occurs must not be arbitrary, which in

turn requires that the legislation must not be unjust, unpredictable or

unreasonable. The law authorizing interference with privacy must

specify in detail the precise circumstances in which the interference is

permitted and must not be implemented in a discriminatory

37 Id, at 1338 http://www.ohchr.org/Documents/Publications/Factsheet32EN.pdf. Accessed on March 30, 2015, at 45.

16

manner.103 This does not mean, however, that States enjoy an

unlimited discretion to interfere with privacy, since any limitation on

rights must be necessary to achieve legitimate purposes and be

proportionate to those purposes. Regard must also be had to the

obligation of States to protect against the arbitrary exercise of such

authorizations. Thus, in Klass v. Germany for example, the European

Court of Human Rights stated that it must be satisfied that any system

of secret surveillance conducted by the State must be accompanied by

adequate and effective guarantees against abuse. Where personal

information is collected, the data must be protected against unlawful

or arbitrary access, disclosure or use. Although jurisprudence on this

duty is scarce, the Human Rights Committee, in its general comment

N° 16 (1988), has explained that States must take effective measures

to ensure that information concerning a person’s private life does not

reach the hands of persons who are not authorized by law to receive,

process and use it, and is never used for purposes incompatible with

the International Covenant on Civil and Political Rights. Effective

protection should include the ability of every individual to ascertain in

an intelligible form, whether and, if so, what personal data are stored

in automatic data files, and for what purposes, with a corresponding

right to request rectification or elimination of incorrect data.39

Unlike a number of the qualified rights protected by the

Covenant, article 17 does not enumerate an exhaustive list of

legitimate public policy objectives that may form the basis of a

justification for interfering with the right to privacy. Nonetheless, the

prevention, suppression and investigation of acts of terrorism clearly

amount to a legitimate aim for the purposes of article 17. Terrorism

39 Id.

17

can destabilize communities, threaten social and economic

development, fracture the territorial integrity of States, and undermine

international peace and security. Under article 6 of the Covenant,

States are under a positive obligation to protect citizens and others

within their jurisdiction against acts of terrorism. One aspect of this

obligation is the duty to establish effective mechanisms for identifying

potential terrorist threats before they have materialized. States

discharge this duty through the gathering and analysis of relevant

information by intelligence and law enforcement agencies.40

The enhanced capacity of States to monitor all Internet traffic is

said to be of particular significance in the counter-terrorism context

because communications via the Internet have played an important

part in the financing and perpetration of acts of international terrorism;

because the Internet has been used for the purpose of recruitment to

terrorist organizations; and because the identification in advance of

those involved in the planning or instigation of acts of terrorism may

otherwise be hampered by intelligence limitations. Since terrorism is a

global activity, the search for those involved must extend beyond

national borders. The prevention and suppression of terrorism is thus a

public interest imperative of the highest importance and may in

principle form the basis of an arguable justification for mass

surveillance of the Internet.41

Mass surveillance programmes pose a significant challenge to

the legality requirements of article 17 of the Covenant. Where bulk

access programmes are in operation, there are no limits to the

categories of persons who may be subject to surveillance, and no limits

40 https://firstlook.org/theintercept/document/2014/10/15/un-report-human-rights-terrorism/, Accessed on March 7, 2015, at 14.41 Id.

18

on its duration. These conditions cannot therefore be spelled out in

legislation. The detailed legal and administrative frameworks for mass

surveillance often remain classified, and little is still publicly known

about the ways in which captured data are operationalized. Very few

States have so far enacted primary legislation explicitly authorizing

such programmes. Instead, outdated domestic laws that were

designed to deal with more rudimentary forms of surveillance have

been applied to new digital technology without modification to reflect

the vastly increased capabilities now employed by some States.

Indeed, it has been suggested that certain States have “intentionally

sought to apply older and weaker safeguard regimes to ever more

sensitive information”42

It is incumbent upon States to demonstrate that any interference with the

right to pivacy under article 17 of the Covenant is a necessary means to

achieving a legitimate aim. This requires that there must be a rational connection

between the means employed and the aim sought to be achieved. It also

requires that the measure chosen be “the least intrusive instrument among those

which might achieve the desired result” The related principle of proportionality

involves balancing the extent of the intrusion into Internet privacy rights against

the specific benefit accruing to investigations undertaken by a public authority in

the public interest. However, there are limits to the extent of permissible

interference with a Covenant right. As the Human Rights Committee has

emphasized, “in no case may the restrictions be applied or invoked in a manner

that would impair the essence of a Covenant right”.37 In the context of covert

surveillance, the Committee has therefore stressed that any decision to allow

interference with communications must be taken by the authority designated by

law “on a case-by-case basis”.38 The proportionality of any interference with the

42 Id, at 15.

19

right to privacy should therefore be judged on the particular circumstances of the

individual case. 43

None of these principles sits comfortably with the use of mass surveillance

technology by States. The technical ability to run vast data collection and

analysis programmes undoubtedly offers an additional means by which to pursue

counterterrorism and law enforcement investigations. But an assessment of the

proportionality of these programmes must also take account of the collateral

damage to collective privacy rights. Mass data collection programmes appear to

offend against the requirement that intelligence agencies must select the

measure that is least intrusive on human rights (unless relevant States are in a

position to demonstrate that nothing less than blanket access to all Internet-

based communication is sufficient to protect against the threat of terrorism and

other serious crime). Since there is no opportunity for an individualized

proportionality assessment to be undertaken prior to these measures being

employed, such programmes also appear to undermine the very essence of the

right to privacy. They exclude altogether the “case-by-case” analysis that the

Human Rights Committee has regarded as essential, and they may thus be

deemed to be arbitrary, even if they serve a legitimate aim and have been

adopted on the basis of an accessible legal regime (see A/HRC/27/37, para. 25).

The Special Rapporteur, accordingly, concludes that such programmes can be

compatible with article 17 of the Covenant only if relevant States are in a position

to justify as proportionate the systematic interference with the Internet privacy

rights of a potentially unlimited number of innocent people in any part of the

world.44

43 Id, at 19.44 Id.

20

In the absence of special safeguards, there is virtually no secret

dimension of a person’s private life that would withstand close metadata analysis.

Automated data-mining thus has a particularly corrosive effect on privacy.45

It follows that any capture of communications data is potentially an

interference with privacy and, further, that the collection and retention of

communications data amounts to an interference with privacy whether or not

those data are subsequently consulted or used. Even the mere possibility of

communications information being captured creates an interference with

privacy,6 with a potential chilling effect on rights, including those to free

expression and association. The very existence of a mass surveillance

programme thus creates an interference with privacy. The onus would be on the

State to demonstrate that such interference is neither arbitrary nor unlawful.46

Mass or “bulk” surveillance programmes may thus be deemed to be

arbitrary, even if they serve a legitimate aim and have been adopted on the basis

of an accessible legal regime. In other words, it will not be enough that the

measures are targeted to find certain needles in a haystack; the proper measure

is the impact of the measures on the haystack, relative to the harm threatened;

namely, whether the measure is necessary and proportionate.47

45 Id, at 20.46 http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session27/Documents/A.HRC.27.37_en.pdf. Accessed on March 30, 2015, at 7.

47 Id, at 9.

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CHAPTER VI

CONCLUSION AND RECOMMENDATION

Relative to the problem statement of this study, we can conclude that:

Mass digital surveillance for counter-terrorism violates the

right to privacy under Article 17 the International Covenant on Civil

and Political Rights.

International human rights law provides a clear and universal framework

for the promotion and protection of the right to privacy, including in the context of

domestic and extraterritorial surveillance, the interception of digital

communications and the collection of personal data. Practices in many States

have, however, revealed a lack of adequate national legislation and/or

enforcement, weak procedural safeguards, and ineffective oversight, all of which

have contributed to a lack of accountability for arbitrary or unlawful interference in

the right to privacy.48

States’ obligations under article 17 of the International Covenant on Civil

and Political Rights include the obligation to respect the privacy and security of

digital communications. This implies in principle that individuals have the right to

share information and ideas with one another without interference by the State,

secure in the knowledge that their communication will reach and be read by the

intended recipients alone. Measures that interfere with this right must by

authorized by domestic law that is accessible and precise and that conforms with

the requirements of the Covenant. They must also pursue a legitimate aim and

meet the tests of necessity and proportionality. 49

48 http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session27/Documents/A.HRC.27.37_en.pdf. Accessed on March 30, 2015, at 15.49 https://firstlook.org/theintercept/document/2014/10/15/un-report-human-rights-terrorism/. Accessed on March 7, 2015, at 22.

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The prevention and suppression of terrorism is a public interest

imperative of the highest importance and may in principle form the basis of an

arguable justification for mass surveillance of the Internet. However, the technical

reach of the programmes currently in operation is so wide that they could be

compatible with article 17 of the Covenant only if relevant States are in a position

to justify as proportionate the systematic interference with the Internet privacy

rights of a potentially unlimited number of innocent people located in any part of

the world. Bulk access technology is indiscriminately corrosive of online privacy

and impinges on the very essence of the right guaranteed by article 17. In the

absence of a formal derogation from States’ obligations under the Covenant,

these programmes pose a direct and ongoing challenge to an established norm

of international law.50

Effectively addressing the challenges related to the right to privacy in the

context of modern communications technology will require an ongoing, concerted

multi-stakeholder engagement. This process should include a dialogue involving

all interested stakeholders, including Member States, civil society, scientific and

technical communities, the business sector, academics and human rights

experts. As communication technologies continue to evolve, leadership will be

critical to ensuring that these technologies are used to deliver on their potential

towards the improved enjoyment of the human rights enshrined in the

international legal framework. 51

There is a clear and pressing need for vigilance in ensuring the

compliance of any surveillance policy or practice with international human rights

law, including the right to privacy, through the development of effective

safeguards against abuses. As an immediate measure, States should review

their own national laws, policies and practices to ensure full conformity with

50 Id.51 http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session27/Documents/A.HRC.27.37_en.pdf. Accessed on March 30, 2015, at 16.

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international human rights law. Where there are shortcomings, States should

take steps to address them, including through the adoption of a clear, precise,

accessible, comprehensive and non-discriminatory legislative framework. Steps

should be taken to ensure that effective and independent oversight regimes and

practices are in place, with attention to the right of victims to an effective

remedy.52

There are a number of important practical challenges to the promotion and

protection of the right to privacy in the digital age. Building upon the initial

exploration of some of these issues in the present report, there is a need for

further discussion and in-depth study of issues relating to the effective protection

of the law, procedural safeguards, effective oversight, and remedies. An in-depth

analysis of these issues would help to provide further practical guidance,

grounded in international human rights law, on the principles of necessity,

proportionality and legitimacy in relation to surveillance practices; on measures

for effective, independent and impartial oversight; and on remedial measures.

Further analysis also would assist business entities in meeting their responsibility

to respect human rights, including due diligence and risk management as well as

on their role in providing effective remedies.53

The Special Rapporteur concured with the High Commissioner for

Human Rights that there is an urgent need for States using this

technology to revise and update national legislation to ensure

consistency with international human rights law. Not only is this a

requirement of article 17, but it also provides an important opportunity

for informed debate that can raise public awareness and enable

individuals to make informed choices. Where the privacy rights of the

entire digital community are at stake, nothing short of detailed and

explicit primary legislation should suffice. Appropriate restrictions 52 Id, at 16.53 Id

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should be imposed on the use that can be made of captured data,

requiring relevant public authorities to provide a legal basis for the

reuse of personal information.54

States should establish strong and independent oversight bodies

that are adequately resourced and mandated to conduct ex ante

review, considering applications for authorization not only against the

requirements of domestic law, but also against the necessity and

proportionality requirements of the Covenant. In addition, individuals

should have the right to seek an effective remedy for any alleged

violation of their online privacy rights. This requires a means by which

affected individuals can submit a complaint to an independent

mechanism that is capable of conducting a thorough and impartial

review, with access to all relevant material and attended by adequate

due process guarantees. Accountability mechanisms can take a variety

of forms, but must have the power to order a binding remedy. States

should not impose standing requirements that undermine the right to

an effective remedy. 55

The Special Rapporteur calls upon all States that currently

operate mass digital surveillance technology to provide a detailed and

evidence-based public justification for the systematic interference with

the privacy rights of the online community by reference to the

requirements of article 17 of the Covenant. States should be

transparent about the nature and extent of their Internet penetration,

its methodology and its justification, and should provide a detailed

public account of the tangible benefits that accrue from its use.56

54 https://firstlook.org/theintercept/document/2014/10/15/un-report-human-rights-terrorism/. Accessed on March 7, 2015, at 22.55 Id, at 23.56 Id.

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Security and human rights are not alternatives; they go hand in hand. Respect for

human rights is the route to security, not an obstacle to it. The route to security is

through respect for human rights, not their violations.”57

57 Senator Jamby Madrigal her negative vote to the Human Security Act. Legislative Journal, Senate of the Philippines, 13th Congress, February 7, 2007.

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