Government-led Digital Surveillance
Module 4: Data Privacy and Data Protection
Communications surveillance 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.(1) This relates to both the content of communications and metadata about them, such as their location and connection points. In respect of the latter, it has been noted that the aggregation of metadata may give deep 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 a person.
UN Human Rights Committee General Comment No. 16 provides: “Compliance with article 17 requires that the integrity and confidentiality of correspondence should be guaranteed de jure and de facto”.(2) Surveillance — both bulk (or mass) collection of data(3) 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 its legitimacy.(4) In the digital age, Internet and Communications Technologies (ICTs) have enhanced the capacity of governments, corporations and individuals to conduct surveillance, interception and data collection, such that the ability to conduct such surveillance is no longer limited by scale or duration.(5)
A resolution adopted by the UN General Assembly (UNGA) on the right to privacy in the digital age 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, especially when undertaken on a mass scale.(6) 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.”(7)
In order to meet the condition of legality, many states have taken steps to reform their surveillance laws to authorise surveillance activities. According to the Necessary and Proportionate Principles (a series of principles on the application of human rights to surveillance elaborated by experts and privacy groups), 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 before a competent judicial authority prior to conducting any surveillance:(8)
- 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 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.
- 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 other 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 the information needed to form opinions, particularly where such surveillance leads to repressive outcomes.(9)
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.(10) 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 through surveillance can have serious negative consequences for the right to freedom of expression due to confidential sources losing trust that journalists will be able to conceal their identities.(11) 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 undertaken arbitrarily.
Surveillance activities carried out against journalists risk fundamentally undermining the right of source protection to which journalists are otherwise entitled.(12)
The increased use of digital technologies and increasingly sophisticated surveillance tools have raised additional challenges for maintaining the anonymity of sources, including due to the risk of unintended source disclosure as a result of surveillance of communication devices.(13) For example, certain journalist sources in the US have been identified through telephone and email records.(14) (For more on the protection of journalist sources, please see Module 10 of this training course).