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    Government-led Digital Surveillance

    Module 4: Data Privacy and Data Protection

    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)

    Footnotes

    1. For more on this topic see Media Defence “Training Manual on Digital Rights and Freedom of expression Online: Litigating digital rights and online freedom of expression in East, West and Southern Africa (accessible at: https://www.mediadefence.org/resource-hub/resources/media-defence-training-manual-on-digital-rights-and-freedom-of-expression-online/). Back
    2. Necessary and proportionate: International principles on the application of human rights to communications surveillance, 2014 (Necessary and Proportionate Principles) at p 4 (accessible at: https://necessaryandproportionate.org/files/2016/03/04/en_principles_2014.pdf). Back
    3. General Comment No. 16 at para 8. Back
    4. Revelations be whistle-blowers, such as Edward Snowden, have revealed that the National Security Agency in the USA and the General Communications Headquarters in the United Kingdom had 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 are deployed through a transnational network comprising strategic intelligence relationships between governments and other role-players. This is referred to as bulk or mass surveillance. See 2016 Report of the OHCHR at para 4. Back
    5. 2016 Report of the UNSR on Freedom of Expression at para 20. Back
    6. Report of the OHCHR at para 2. Back
    7. UNGA, ‘Resolution on the right to privacy in the digital age’, A/C.3/71/L.39/Rev.1, 16 November 2016 (2016 UN Resolution on Privacy) (accessible at: http://www.un.org/ga/search/view_doc.asp?symbol=A/C.3/71/L.39/Rev.1). Back
    8. Id. Back
    9. Necessary and Proportionate Principles, Principle 5. Back
    10. UNSR Report on Anonymity and Encryption at para 21. Back
    11. Report of the Secretary-General on the UN to the UNGA, ‘Report on the safety of journalists and the issue of impunity’, A/70/290, 6 August 2015 (2015 Report of the UN Secretary-General) at paras 14-16 (accessible at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/N15/247/06/PDF/N1524706.pdf?OpenElement). Back
    12. For more, see Big Brother Watch v United Kingdom in the ECtHR (2018) (accessible at: https://globalfreedomofexpression.columbia.edu/cases/big-brother-watch-v-united-kingdom/) and amaBhungane Centre for Investigative Journalism v Minister of Justice in South Africa (2019) (accessible at: http://www.saflii.org/za/cases/ZAGPPHC/2019/384.html). Back
    13. [2012] ZAGPJHC 71, 26 April 2012 (accessible at: http://www.saflii.org/za/cases/ZAGPJHC/2012/71.html). Back
    14. Id. at para 38. Back
    15. According to principle 9 of the Global Principles, states should provide for the protection of the confidentiality of sources in their legislation and ensure that:
      – Any restriction on the right to protection of sources complies with the three-part test under international human rights law.
      – The confidentiality of sources should only be lifted in exceptional circumstances and only by a court order, which complies with the requirements of a legitimate aim, necessity, and proportionality. The same protections should apply to access to journalistic material.
      – The right not to disclose the identity of sources and the protection of journalistic material requires that the privacy and security of the communications of anyone engaged in journalistic activity, including access to their communications data and metadata, must be protected. Circumventions, such as secret surveillance or analysis of communications data not authorised by judicial authorities according to clear and narrow legal rules, must not be used to undermine source confidentiality.
      – Any court order must only be granted after a fair hearing where sufficient notice has been given to the journalist in question, except in genuine emergencies.
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