UN High Commissioner claims privacy is a human right, but hopes dwindle on surveillance reform

The United Nations has taken up the protection of privacy as one key issue in human rights protection in the digital age – one more effect of the revelations of NSA whistleblower Edward Snowden one year ago. In the upcoming sessions of the Human Rights Council and the General Assembly (GA) the recently published report by Navi Pillay, UN High Commissioner for Human Rights, will result in another round of government discussions on the future of privacy vis-a-vis their surveillance practices.

When Pillay told reporters at the end of July that surveillance was not an abstract phenomenon, but could result in damaging or even lethal actions, civil society organisations welcomed it and rejoiced: this could be a game changer. Yet, looking to recent government moves, hopes for real reform in surveillance legislation are dwindling.

Pillay's report which follows up from one pre-Snowden report published in April 2013 puts a strong emphasis on the understanding that the “mere possibility of communications information being captured creates an interference with privacy with a potential chilling effect on rights, including those to free expression and association.” This report responds to a resolution by the GA initiated by Brazil and Germany after the revelations of mass surveillance last year.

UN approach at present: States should review their legislation

Surveillance legislation, the report begins, is not at all a guarantee that activities by state agencies are lawful. They might very well be in conflict with the International Covenant on Civil and Political Rights, the base international law, upon which Pillay grounds her arguments. In her recommendations, Pillay therefore recommends that “as an intermediate measure, states should review their own national laws policies and practices to ensure full conformity with international human rights law.”

Pillay is adamant in laying the blame for the lack of transparency on the side of governments with regard to surveillance activities and related human rights infringements and she warns that assessment might be updated against the evolving nature of the issue. Yet, the High Commissioner so far has not asked for a new Special Rapporteur on Privacy, let alone a new instrument.

Laws reviewed – but not for improved privacy

A special Privacy Rapporteur has been proposed by activist groups like Privacy International and the Global Network Initiative (GNI) and the proposals have been made part of their contribution to Pillays consultation preparing her report. At the GNI feelings seem to be sobered by recent events. David Sullivan, Policy and Communications Director for GNI acknowledges the UN push.

“The UN report bolsters global surveillance reform efforts and provides critical legitimacy, but it is all too clear that the legal frameworks that govern electronic surveillance remain largely opaque. And in many cases exemplified by the rushed UK legislation, laws are getting worse not better”, Sullivan wrote to the Internet Policy Review.

In the UK, the recently enacted Data Retention Investigatory Powers Act (DRIP) tries to get back what the European Court of Justice tried to take away from agencies in the EU: the storage of everybody's communication traffic data. Telecoms companies could be obliged to store data for up to a year according to the Act and UK authorities want even to get their hands on operators based outside of the UK. What the UK has implemented is just what the UN High Commissioner has denounced as “neither necessary nor proportionate”.

Data protection regulation in the EU, please!

“We should get it right with harmonized standards in the EU first”, Philipp Blank, spokesperson of Deutsche Telekom reacted to questions on international legislation. “We urgently need the EU Data Protection Regulation.” The Regulation, Blank tells us, should result in a high standard in Europe, regardless of where operators are based. The EU Data Protection Regulation did not make it during the outgoing legislature despite a final vote by the parliament - so far, EU governments have not been able to agree. DTAG supported harmonized high standards on the international level, as trust in digitization was key. Yet Blank kept silent on further UN measures, as did the Telecommunication Industry Dialogue, contacted by the Internet Policy Review.

Looking to the UN, looking to courts

Pillay's report will be discussed at the 112h session of the Human Rights Council in October and possibly also during the General Assembly after that and it will be interesting to see how governments will follow earlier intiatives, including the privacy resolution last year. “Governments actively committed to protecting rights online should be leaders”, requested Sullivan, and applauded the intergovernmental Freedom Online Coalition’s commitments at their meeting in Tallinn, “but they need to be implemented”, he said.

Before that happens more pressure might be necessary, even for the more democratic governments who were rather happy to present what they believed were acceptable safeguards during Pillay's consultation. The British Government, which faces complaints at the European Court of Human Rights in Strasbourg, underlined the privacy-friendly nature of its intelligence legislation, adding: “Although in some countries secret intelligence is used for political repression and state control, which we deplore, in the UK we have used it to protect our rights and freedoms and to promote human rights”, and declared their system of oversight and authorization of necessary surveillance perfect.

Certainly the Courts in Strasbourg or Karlsruhe (where the German Constitutional Court resides), to which privacy organizations have turned, might think otherwise. Furthermore, the UN discussion might be fuelled with more material from the Snowden package or more revelations inspired by Snowden – see the much discussed US list of 680.000 potential terrorists published by the Intercept. New assessments are possible, as the UN report has already envisaged.