ARTICLES / EXPRESSION / FAIR TRIAL RIGHTS / INTERNATIONAL AFFAIRS / TERRORISM
GETTY IMAGES. THOMAS JACKSON / STONE
This article is part of Right Now’s February issue, focusing on Technology and Human Rights.
By Asher Hirsh
Last year, worldwide media was captivated by the revelations brought about by Edward Snowden, that the US, as part of the “5-eyes” program along with the UK, Canada, Australia and New Zealand have conducted a worldwide systemic surveillance of communication data. As Snowden, an ex National Security Agency (NSA) contractor, revealed, thesurveillance includes metadata, location data, text messages, emails and even voice records.
Such data is not obtained via the traditional process of obtaining a warrant, but rather collected and stored on a mass scale despite any suspicion or cause for surveillance. More worrying, as Snowden pointed out in a recent media interview, is the way the members of the “5-eyes” spy program bypass domestic laws through partnering with other members. While Australia cannot spy on its own citizens without legal process, Canada, New Zealand, UK or US can collect and SHARE such data under this arrangement. As such, as domestic laws have often failed to protect the privacy of the public, it is important to look towards international human rights laws to protect the right to privacy.
International Human Rights Law
The United Nations General Assembly has recently adopted a resolution declaring the “right to privacy in a digital age.” In the resolution, the General Assembly reaffirmed the right to privacy found within the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
Article 12 of The Universal Declaration of Human Rights (UDHR) states that:
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
In addition, article 17 of the International Convention on Civil and Political Rights (ICCPR), which codifies the UDHR into a binding treaty states, almost mirrors the UDHR.
Such laws seem clear that privacy is a fundamental human right, and that mass surveillance seems to breach this right. However, human rights are often about a balance of COMPETING rights. While indeed some rights are absolute, such as the right not to be tortured, other rights can be limited or qualified in certain circumstances.
The recent debate regarding freedom of speech and racial discrimination is another example of the balancing act required to protect COMPETING human rights. In the same way, the right to privacy may be limited by other competing rights, such as the right to life or the safety of a community.
Indeed the wording of the law in the ICCPR refers to “arbitrary or unlawful interference”. Such words ask us to consider if the NSA spying is indeed unlawful or arbitrary.
The term unlawful, as the UN Human Rights Committee points out, means that no “interference can take place except in cases envisaged by the law.” As such, it is important to look to domestic cases to understand if these mass surveillances are unlawful.
Already in the US there is a debate about the constitutionality of the NSA program. Late last year a federal judge in Washington “ruled that that the bulk collection of Americans” telephone records by the NSA is likely to violate the US constitution, calling it “almost Orwellian”. However, only 10 days later, a New York federal trial judge found the exact opposite, stating that the NSA spying was legal under the American constitution. A conclusion to this case will probably only be decided by the US Supreme Court in 2015.
In other countries, mass surveillance is also being challenged in domestic courts. A case in British courts by nearly a dozen civil liberties groups seeks to challenge