Government-led Digital Surveillance

Communications surveillance(1) encompasses the monitoring, intercepting, collecting, obtaining, analysing, using, preserving, retaining, interfering with, accessing or similar actions taken with regard to information that includes, reflects, arises from or is about a person’s communications in the past, present, or future.(2) This relates to both the content of communications and metadata.  In respect of the latter, it has been noted that the aggregation of information — commonly referred to as ‘metadata’ — may give an insight into an individual’s behaviour, social relationships, private preferences and identity.  Taken as a whole, it may allow very precise conclusions to be drawn concerning the private life of the person.

General Comment No. 16 provides that “[s]urveillance, whether electronic or otherwise, interceptions of telephonic, telegraphic and other forms of communication, wire-tapping and recording of conversations should be prohibited”.(3) Surveillance — both bulk (or mass) collection of data(4) or targeted collection of data — interferes directly with the privacy and security necessary for freedom of opinion and expression, and must be considered against the three-part test to assess the permissibility of the restriction.(5) In the digital age, ICTs have enhanced the capacity of governments, corporations and individuals to conduct surveillance, interception and data collection, and have meant that the effectiveness in conducting such surveillance is no longer limited by scale or duration.(6)

In a resolution adopted by the UN General Assembly (UNGA) on the right to privacy in the digital age, the UNGA emphasised that unlawful or arbitrary surveillance and/or interception of communications, as well as the unlawful or arbitrary collection of personal data are highly intrusive acts, violate the right to privacy, can interfere with the right to freedom of expression and may contradict the tenets of a democratic society, including when undertaken on a mass scale.(7) It noted further that surveillance of digital communications must be consistent with international human rights obligations and must be conducted on the basis of a legal framework, which must be publicly accessible, clear, precise, comprehensive and non-discriminatory.(8)

In order to meet the condition of legality, many states have taken steps to reform their surveillance laws to allow for the powers required to conduct the surveillance activities.  According to the Necessity and Proportionate Principles, communications surveillance should be regarded as a highly intrusive act, and in order to meet the threshold of proportionality, the state should be required at a minimum to establish the following information to a competent judicial authority prior to conducting any communications surveillance:(9)

• There is a high degree of probability that a serious crime or specific threat to a legitimate aim has been or will be carried out.
• There is a high degree of probability that evidence relevant and material to such a serious crime or specific threat to a legitimate aim would be obtained by accessing the protected information sought.
• Other less invasive techniques have been exhausted or would be futile, such that the technique used is the least invasive option.
• Information accessed will be confined to that which is relevant and material to the serious crime or specific threat to a legitimate aim alleged.
• Any excess information collected will not be retained, but instead will be promptly destroyed or returned.
• Information will be accessed only by the specified authority and used only for the purpose and duration for which authorisation was given.
• The surveillance activities requested and techniques proposed do not undermine the essence of the right to privacy or of fundamental freedoms.

Surveillance constitutes an obvious interference with the right to privacy.  Further, it also constitutes an interference on the right to hold opinions without interference and the right to freedom of expression.  With particular reference to the right to hold opinions without interference, surveillance systems, both targeted and mass, may undermine the right to form an opinion, as the fear of unwilling disclosure of online activity, such as search and browsing, likely deters individuals from accessing information, particularly where such surveillance leads to repressive outcomes.(10)

The interference with the right to freedom of expression is particularly apparent in the context of journalists and members of the media who may be placed under surveillance as a result of their journalistic activities.  As noted by the Secretary-General of the UN, this can have a chilling effect on the enjoyment of media freedom, and renders it more difficult to communicate with sources and share and develop ideas, which may lead to self-censorship.(11) The use of encryption and other similar tools have become essential to the work of journalists to ensure that they are able to conduct their work without interference.

The disclosure of journalistic sources and surveillance can have negative consequences for the right to freedom of expression due to a breach of an individual’s confidentiality in their communications.(12) This is the same for cases concerning the disclosure of anonymous user data.  Once confidentiality is undermined, it cannot be restored.  It is, therefore, of utmost importance that measures that undermine confidentiality are not taken arbitrarily.

The importance of source protection has been well-established.  For example, in Bosasa Operation (Pty) Ltd v Basson and Another, the South Africa High Court held that journalists are not required to reveal their sources, subject to certain exceptions.(13)

The court stated in this regard that:

“If indeed freedom of the press is fundamental and sine qua non for democracy, it is essential that in carrying out this public duty for the public good, the identity of their sources should not be revealed, particularly, when the information so revealed, would not have been publicly known.  This essential and critical role of the media, which is more pronounced in our nascent democracy, founded on openness, where corruption has become cancerous, needs to be fostered rather than denuded.”(14)

Surveillance activities carried out against journalists have the risk of fundamentally undermining the source protection to which journalists are otherwise entitled.(15)