The UN creates a new rapporteur on the right to privacy in the digital age

In a highly anticipated resolution passed on March 26, 2015, the UN Human Rights Council decided to appoint a special rapporteur on the right to privacy, with a particular focus on issues arising in the digital age. The resolution was welcomed by international civil society organizations, which have been advocating for the creation of a special mandate from the months following the revelations of Edward Snowden. Spearheaded by Germany and Brazil and passed by consensus, the resolution is an affirmation that government communications surveillance continues to concern the international community nearly two years after the first disclosure.

Despite the validation from the United Nations that this issue merits continued focus, the flurry of recent international reports, resolutions, and legal challenges involving the right to privacy in digital communications may lead observers to question what new contributions a rapporteur can add to the international debate. This post contains an overview of the international legal developments around this issue to date, and a second post will offer some thoughts as to where the new rapporteur might direct her or his focus.

The right to privacy is established in Article 17 of the International Covenant on Civil and Political Rights and Article 12 of the Universal Declaration of Human Rights, as well as in the regional human rights treaties. Since the Klass and others v. Germany case of 1978, the European Court of Human Rights has issued the greatest number of relevant precedents on privacy and communications surveillance. The UN Human Rights Committee’s brief General Comment 16 of 1988 on the right to privacy predates most of the technologies that occupy current headlines, and it is not consistent with the standards being applied at the time by the European Court. The comment maintains 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.”

In 2009, the report of special rapporteur on counter-terrorism and human rights Martin Scheinin dealt with communications surveillance and marked an increasing interest in issues arising in the digital age on the part of the UN human rights system. Human Rights Council Resolution 20/8 of July 5, 2012, while not specifically mentioning the right to privacy, affirmed that the same rights that people have offline must also be protected online. The 2013 report of UN special rapporteur for freedom of expression Frank La Rue, released publicly days before the first Snowden revelation, explored the key issues and standards related to the right to privacy and communications surveillance.

Starting on June 5, 2013, Edward Snowden released documents indicating that the governments of the United States and the United Kingdom, among other European countries, were engaging in the bulk collection of communications metadata and have intercepted the contents of millions of communications of their own citizens and of foreign nationals, generally due to the high volume of global communications traffic that flows through the borders of these countries. Much attention has been paid to surveillance in the two countries, which were the focus of a report by UN Special Rapporteur Ben Emmerson in September of 2014. But reports unrelated to the Snowden revelations have described mass communications surveillance programs in the Russian Federation, Central Asia, India, and African countries, as well as the allegedly arbitrary targeted surveillance of political and human rights leaders in other regions. These reports underscore that while most states do not appear to conduct communications surveillance on as large a scale as the United States and the United Kingdom appear to, the right to privacy in communications must be addressed on a global level.

The European Parliament was among the first institutions to respond to the Snowden revelations in July of 2013 by instructing the Committee on Civil Liberties, Justice and Home Affairs (LIBE) to conduct an inquiry into the Electronic Mass Surveillance of EU Citizens. After a series of hearings, the Committee report concluded that “[t]he fight against terrorism can never be a justification for untargeted, secret, or even illegal mass surveillance programmes; [the European Parliament] takes the view that such programmes are incompatible with the principles of necessity and proportionality in a democratic society.” Civil society organizations have challenged British communications surveillance laws and programs before the European Court of Human Rights, which had previously found that the legal framework governing external communications surveillance was inconsistent with the requirements of Article 8 (laws governing surveillance of internal communications were not held to violate the right to privacy).

The United Nations responded to the revelations in December of 2013 with the passage of the first General Assembly resolution on The Right to Privacy in the Digital Age, which called on states “[t]o review their procedures, practices and legislation regarding the surveillance of communications” in light of their obligations under international human rights law. The resolution requested the UN High Commissioner for Human Rights to prepare a report on The Right to Privacy in the Digital Age, which was released in July of 2014. Momentum for the establishment of a special procedure built with General Assembly Resolution 69/166, and the mandate was established on March 26, 2015.

There was initial uncertainty regarding the scope of the mandate that would be approved by the Human Rights Council. While an open-ended name has been chosen, the resolution – entitled The right to privacy in the digital age – clearly reflects a response to the events of the past two years. The new rapporteur is tasked with making recommendations to ensure protection of the right to privacy, “including in connection with the challenges arising from new technologies” and addressing “particular challenges arising in the digital age.” The Human Rights Council extends an invitation to “include . . . considerations that the mandate holder finds relevant to address the right to privacy in the digital age” in his or her first report. Some thoughts on where the new rapporteur might begin will be the subject of a second post.