October 2014

A recent UN report submitted by the Special Rapporteur on 'the promotion and protection of human rights and fundamental freedoms while countering terrorism' declares mass surveillance programs are in violation of article 17 of the International Covenant on Civil and Political Rights. Special Rapporteur Ben Emmerson begins by distinguishing between targeted and mass surveillance. Whereas targeted surveillance is based on suspicion of particular individuals, mass surveillance is indiscriminate. Emmerson points out that while the right to privacy is not an absolute right, it must be protected unless there is a compelling reason to violate it. He notes that in the current security climate, where terrorism is a very real threat that can (and does) result in large scale destruction and loss of human life, justification can be made in certain cases. He then suggests that government agencies have not as of yet put forth a compelling justification for mass surveillance. He points out that in terms of privacy violations, it is incumbent upon state actors to choose the least intrusive measure available. Moreover, he argues that citizens have a right to know what quality of privacy they can expect when sending and receiving communication with their contacts. Since citizens are not aware of the surveillance practices of intelligence agencies, they cannot know when their communication may be intercepted. Thus, citizens cannot be said to 'know better' than to send information they wish to keep secure through the Internet. Emmerson suggests that informed public debate must take place to allow citizens to participate in determining what the right balance between public security and personal privacy might be. He argues that laws must be written to bring legal protection in line with our newly digital society. Emmerson suggests that we are in an era where what is possible technologically is not necessarily responsible or desirable. His conclusion is that preventing terrorist acts could provide justification for mass surveillance "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". This begs the question, what level of terrorism would justify the end of privacy rights for all?