{"id":382,"date":"2024-06-25T20:23:36","date_gmt":"2024-06-25T19:23:36","guid":{"rendered":"https:\/\/www.mediadefence.org\/ereader\/?post_type=publication&p=382"},"modified":"2024-06-25T20:23:38","modified_gmt":"2024-06-25T19:23:38","slug":"government-led-digital-surveillance","status":"publish","type":"publication","link":"https:\/\/www.mediadefence.org\/ereader\/publications\/introductory-modules-on-digital-rights-and-freedom-of-expression-online\/module-4-data-privacy-and-data-protection\/government-led-digital-surveillance\/","title":{"rendered":"Government & Corporate Surveillance"},"content":{"rendered":"\n

Communications surveillance encompasses the monitoring, intercepting, collecting, analysing, retention, or similar actions, of a person\u2019s communications in the past, present, or future.[footnote]Article19 et al, \u2018Necessary and proportionate: International principles on the application of human rights to communications surveillance\u2019 (2014) (accessible at https:\/\/necessaryandproportionate.org\/files\/2016\/03\/04\/en_principles_2014.pdf) at p 4.[\/footnote] This relates to both the content of communications and communication metadata <\/em>\u2013 which is information about <\/em>a communication, such as the identities of the parties, the time or duration or location of the communication, and technical services used. It has been noted that even communication metadata can give detailed insights into an individual\u2019s 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.[footnote]For more on this topic see Media Defence \u2018Training Manual on Digital Rights and Freedom of expression Online: Litigating digital rights and online freedom of expression in East, West and Southern Africa\u2019 (accessible at https:\/\/www.mediadefence.org\/wp-content\/uploads\/2020\/06\/MLDI-Training-Manual-on-Digital-Rights-and-Freedom-of-Expression-Online.pdf).[\/footnote]<\/p>\n\n\n\n

In recent years, the use of sophisticated surveillance technology on mobile phones has gained increasing prominence amidst concerns about its extensive abuse to monitor political opponents and activists.<\/p>\n\n\n\n

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The Pegasus scandal<\/strong><\/strong><\/strong><\/strong><\/strong><\/h3>\n\n\n\n

In 2021, news broke that at least 180 journalists as well as political leaders had been targeted for surveillance by Pegasus spyware, a system that can be remotely installed on a smartphone enabling complete control over the device.[footnote]Forbidden Stories, \u2018Journalists Under Surveillance\u2019 (2021) (accessible at https:\/\/forbiddenstories.org\/pegasus-journalists-under-surveillance\/).[\/footnote] The news attracted widespread condemnation, including, for example, the Supreme Court of India in 2021 ordered an independent inquiry into allegations that the government deployed the Pegasus spyware against various journalists, politicians, and dissidents because of the deeply chilling effects its use could have on freedom of expression.[footnote]Sharma v Union of India and Others<\/em>, Writ Petition (CRL.) No. 314 (2021) (accessible at https:\/\/main.sci.gov.in\/supremecourt\/2021\/16884\/16884_2021_1_1501_30827_Judgement_27-Oct-2021.pdf).[\/footnote]<\/p>\n\n\n\n

Although the findings of the Court\u2019s investigation have not been made public, evidence has since come to light of the continued use of the Pegasus software to surveil journalists.[footnote]Amnesty International, \u2018India: Damning new forensic investigation reveals repeated use of Pegasus spyware to target high-profile journalists\u2019 (2023) (accessible at https:\/\/www.amnesty.org\/en\/latest\/news\/2023\/12\/india-damning-new-forensic-investigation-reveals-repeated-use-of-pegasus-spyware-to-target-high-profile-journalists\/).[\/footnote]<\/p>\n\n\n\n

In 2019, Meta launched litigation against the NSO Group, the maker of Pegasus software, claiming that it was responsible for a series of cyber-attacks which violated American law.[footnote]Nick Hopkins and Stephanie Kirchgaessner, \u2018WhatsApp sues Israeli firm, accursing it of hacking activists\u2019 phones\u2019 The Guardian<\/em> (2019) (accessible at https:\/\/www.theguardian.com\/technology\/2019\/oct\/29\/whatsapp-sues-israeli-firm-accusing-it-of-hacking-activists-phones).[\/footnote]<\/p>\n\n\n\n

The litigation is as of 2024 still ongoing. In February 2024, NSO Group was ordered to hand over its code for Pegasus and other spyware products, as well as information concerning the full functionality of the relevant spyware.[footnote]Stephanie Kirchgaessner, \u2018Court orders maker of Pegasus spyware to hand over code to Whatsapp\u2019 The Guardian<\/em> (2024) (accessible at https:\/\/www.theguardian.com\/technology\/2024\/feb\/29\/pegasus-surveillance-code-whatsapp-meta-lawsuit-nso-group).[\/footnote]<\/p>\n\n\n\n

African activists and journalists were among some of the targets identified in the Pegasus scandal, as were powerful politicians and state officials revealed to be users of the tools. In 2024, Reporters without Borders found spyware traces on the phones of two Togolese<\/strong> journalists while they were on trial for defamation against a government minister.[footnote]RSF, \u2018In first for Togo, RSF identifies spyware on phones of two Togolese journalists\u2019 (2024) (accessible at https:\/\/rsf.org\/en\/first-togo-rsf-identifies-spyware-phones-two-togolese-journalists).[\/footnote]<\/p>\n<\/div><\/div>\n\n\n\n

International law position<\/h2>\n\n\n\n

General Comment No. 16 provides that \u201c[s]urveillance, whether electronic or otherwise, interceptions of telephonic, telegraphic and other forms of communication, wire-tapping and recording of conversations should be prohibited.\u201d[footnote]See above n 9 at para 8.[\/footnote] Surveillance \u2014 both bulk (or mass) collection of data[footnote]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\u2019 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 above n 47 at para 4.[\/footnote] or targeted collection of data \u2014 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.<\/p>\n\n\n\n

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 of conducting such surveillance is no longer limited by scale or duration.<\/p>\n\n\n\n

In Africa, some countries have even passed legislation enabling digital surveillance of targeted groups; for example, the United Nations Special Rapporteur on Privacy has noted with concern the Anti-Cybercrime Law enacted in Egypt in 2018 which reportedly enables surveillance of the LGBTQI community.[footnote]UNSR on Privacy, \u2018Report prepared pursuant to Human Rights Council resolutions 28\/16 and 37\/2\u2019 (20190 (accessible at https:\/\/documents.un.org\/doc\/undoc\/gen\/g19\/307\/40\/pdf\/g1930740.pdf?token=Llio29GStCcXeab4uk&fe=true) at p 14.[\/footnote]<\/p>\n\n\n\n

In a resolution adopted by the UN General Assembly (UNGA<\/a>) 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.[footnote]UNGA, \u2018Resolution on the right to privacy in the digital age\u2019 A\/C.3\/71\/L.39\/Rev.1, (2016) (accessible at http:\/\/www.un.org\/ga\/search\/view_doc.asp?symbol=A\/C.3\/71\/L.39\/Rev.1).[\/footnote] 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.<\/p>\n\n\n\n

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 surveillance activities. According to the Necessary and Proportionate Principles<\/a>, a civil society initiative to document the principles that apply to any limitation on freedom of expression, 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:[footnote]See above n 65 at Principle 5.[\/footnote]<\/p>\n\n\n\n