https://www.accessnow.org/five-eyes-surveillance-under-fire-by-un-human-rights-committee/
Five Eyes’ Surveillance Under Fire By U.N. Human Rights Committee
PUBLISHED: 4 August 2015 LAST UPDATED: 13 January 2023
By Max Anderson
Last week was a busy one for the U.N. Human Rights Committee. It graded the United States on its surveillance practices (hint: the U.S. probably should not hang this report card on the fridge). It also issued “concluding observations” for seven countries on human rights, including “Five Eyes” members Canada and the United Kingdom. In the conclusions the Committee strongly condemned the use of surveillance as a violation of the right to privacy.
The U.S. report card
Access, along with partners at the Brennan Center for Justice and Amnesty International, made a submission to the U.N. Human Rights Committee responding to the follow-up to the recommendations the Committee had made to the U.S. on how to curb the unlawful surveillance conducted by the U.S. National Security Agency.
The Committee’s mid-term review of the implementation of its recommendations is done using a report card format. It is easy to see that the Committee was nonplussed with the poor implementation by the U.S. For each of its five recommendations, the U.S. performed as follows: C,C,C,C, and D. Earning a C means that the U.S. response or reply was deemed unsatisfactory; the D grade means that the U.S. offered no cooperation whatsoever.
The Brennan Center for Justice has analysis of the grades, as does The Intercept here.
Concluding observations for seven countries
The Committee also published responses to government reports by Canada, France, Macedonia, Spain, the United Kingdom, Uzbekistan, and Venezuela. In these responses, the Committee underscored key principles for government surveillance that we at Access share. These include that:
- Any interference with communications, as well as retention of data, must respect the principles of legality, proportionality, and necessity.
- Governments should not treat individuals differently when it comes to their fundamental human rights, regardless of their nationality.
- Governments that have conducted unlawful surveillance need to notify the victims and provide adequate channels for remedy.
Background
The U.N. Human Rights Committee is a panel of independent experts established by the International Covenant on Civil and Political Rights (ICCPR), an international treaty. One of the roles of the Committee is to oversee the implementation of the rights guaranteed by the treaty. This happens through a process where the state parties to the treaty (of which there are 162) submit regular reports, and the Committee responds.
What did the Committee have to say?
- On Canada, which recently gave itself broad spying abilities, the Committee directly referred to Bill C-51, asking Canada to “refrain from adopting legislation that imposes undue restrictions on the exercise of rights under the Covenant,” and expressed its concern that the bill “confers a broad mandate and powers on the Canadian Security Intelligence Service (CSIS) to act domestically and abroad, thus potentially resulting in mass surveillance and targeting activities that are protected under the Covenant without sufficient and clear legal safeguards.”
- On France, which like Canada has very recently approved sweeping surveillance powers, the Committee expressed its concern about these powers, both within France and outside of its borders. The Committee made reference to Article 17 of the Covenant, which guarantees the right to privacy, and asked that all interference in private life be consistent with principles of legality, proportionality, and necessity.
- On Macedonia, the Committee expressed concern, referring to reports that thousands of Macedonians had been under surveillance by the Security Services. The Committee called on Macedonia to undertake measures to ensure that “any interference with the right to privacy complies with the principles of legality, proportionality, and necessity.” It also asked that individuals that had been victims of unlawful surveillance be notified and given access to adequate remedies.
- On Spain, the Committee did not offer any concluding observations on violations of the right to privacy.
- On the United Kingdom, which is not in the habit of applying human rights to its surveillance practices, the Committee took note of the reports that Amnesty International’s email communication had been intercepted under a general warrant, and expressed concern over the Regulation of Investigatory Powers Act’s (RIPA) untargeted warrants for “external” private communication. It also expressed concern over how Data Retention and Investigatory Powers Act (DRIP or DRIPA) allows for surveillance that is not limited to “the most serious crimes.” The Committee asked the U.K. to review its surveillance regime, to respect Article 17 on the right to privacy, and to take measures to “to ensure that any interference with the right to privacy complies with the principles of legality, proportionality, and necessity, regardless of the nationality or location of the individuals whose communications are under direct surveillance.”
- On Uzbekistan, which uses Soviet-era surveillance technology that Access has reported on in the past — and which is also the site of the TeliaSonera corruption scandal — the Committee expressed continued concern over “harassment, surveillance, arbitrary arrests and detentions, torture, and ill-treatment by law enforcement officers and prosecutions on trumped-up charges of independent journalists, government critics, and dissidents, human rights defenders, and other activists, in retaliation to their work.” The Committee expressed further concern about “reports that freedom of expression on controversial and politically sensitive issues is severely restricted in practice, and websites providing such information are blocked and news agencies forbidden to function.”
- On Venezuela, the Committee did not offer any concluding observations on violations of the right to privacy.
Conclusion
While many U.N. processes are intergovernmental and leave only limited room for civil society participation, we are pleased to see that there is nevertheless increasing recognition in many parts of the U.N.— from principal organs to human rights expert bodies — that digital rights are important, and member states are called out when they violate these rights. Access will continue to push for technology policy that respects human rights, at the U.N. and elsewhere, as well as engaging users in advocacy and offering direct technical support as we fight for open and secure communications for all.
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