Update: 29.04.2015

UN mandate on the supervision of the right to privacy

«Somebody has to supervise those who supervise others». These were the words the French section of Amnesty International used to welcome the creation of the mandate of a Special Rapporteur on the Right to Privacy. At its 28th session that took place between 2 and 27 March in Geneva, the Human Rights Council passed a resolution to implement this goal.

The creation of such a mandate has been demanded by numerous NGOs. In the present climate of mass surveillance, the future Special Rapporteur will have plenty of work to do. He or she will have to present a first annual report to the Human Rights Council in March 2016. For the moment, the mandate is limited to a period of three years.

Negotiations in the background

Even though the resolution was accepted by consensus, it can be assumed that negotiations are going on in the background on who is going to be awarded the mandate. According to rumours the United States in particular will do everything in their power to push through a candidate that matches their expectations when the nominations are conducted in June 2015. During the negotiations on the wording of the resolution in March 2015 the USA already campaigned to pass a version that matched their needs. They wanted to limit the explicitly «digital» scope of the mandate to the greatest extent possible. That is the reason why the mandate is now merely called «Special Rapporteur on the Right to Privacy» without the addition «in the digital age». Besides the US various other countries advocating mass surveillance called for this restriction, namely Great Britain, Australia, New Zealand, Canada and Estonia.

Switzerland on the other hand joined Germany's and Brazil's lead in an active attempt to arrive at a resolution which still contains plenty of legal substance. The challenge was to include the sensitive issues of extraterritorial mass surveillance and control practices of secret services into the sphere of the mandate. This was assured by including a principle in the resolution that rights provided offline to people must also be granted online.

The mandate

The resolution states that the Human Rights Council is extremely concerned «about the possible fatal effects of the supervision or interception of messages also beyond the national borders, as well as of the collection of personal data especially on a bigger scale on the free exercise of human rights». According to the resolution the holder of the mandate has to focus on problems and trends that affect the right to privacy. In addition the holder of the mandate shall issue recommendations guaranteeing the promotion and protection of the right to privacy in regard to the effects of new technologies. Furthermore, it is the aim of the mandate to provide effective legal measures to people whose right to privacy has been violated.

The mandate holder elected will also have to define all presumed violations of the right to privacy as listed in Art. 12 of the Universal Declaration of Human Rights and Art 17 of the International Covenant on Civil and Political Rights. The text of the resolution explicitly mentions infringements of privacy rights in the digital context. In very grave cases the Special Rapporteur must report to the Human Rights Council and the High Commissioner for Human Rights.

Growing political pressure for mass surveillance

Effective measures for the protection of privacy on a national level are taking time to materialise. The extent of mass surveillance by the US and other countries has been known for more than two years now, but despite this the overall situation has become worse. The terrorist attacks in France in January 2015 led to an increase of surveillance and mass collection of data especially in Western countries.

Many countries just recently decided or are presently debating to grant their secret services more competences, for example France, Canada or Switzerland. While Swiss diplomats called for an increased right for privacy at the Human Rights Council in Geneva, the National Council in Bern debated on a revision of the Intelligence Service Act (NDG), calling for an expansion of surveillance activities by Swiss secret services. The National Council passed the NDG on 17 March 2015, which will be debated on in the Council of States during the Summer Session.

Digitalisation as danger for human rights defenders

Before the passing of the UN resolution, 60 international NGOs such as Amnesty International, Privacy International and Human Rights Watch launched an appeal for the mandate of a Special Rapporteur on the Right to Privacy. The human rights organisations consider this mandate as an essential instrument to clarify the effects of widespread supervision on personal privacy and in particular on the freedom of expression. They also want to call attention to an issue which at present is not being treated sufficiently because of the debate on the fight against terrorism: digital surveillance methods are increasingly being used against human rights defenders.

Authoritarian governments find it increasingly easier to control social movements that have their origins in civil society, to censor their campaigns, to block their access to information or to follow the communication of important protagonists. Although this is a danger each and every one of us is exposed to, it is something human rights defenders are particularly prone to experience, says Eileen Donahoe, Director of Global Affairs at Human Rights Watch, in a statement for the attention of the International Service for Human Rights (ISHR). Due to the supervision and the mass collection of personal data, an increasing number of human rights defenders feel threatened, molested or in danger, because they address topics which their government would prefer not to talk about publicly. The constant fear of being controlled, being supervised or having your conversations tapped has a negative impact on the willingness to talk about negative issues, meet certain people or visit certain places. This amounts to a severe interference with advocacy for human rights issues.

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