Final version 10 July 2013
As technologies that facilitate State surveillance of communications advance, States are failing to ensure that laws and regulations related to communications surveillance adhere to international human rights and adequately protect the rights to privacy and freedom of expression. This document attempts to explain how international human rights law applies in the current digital environment, particularly in light of the increase in and changes to communications surveillance technologies and techniques. These principles can provide civil society groups, industry, States and others with a framework to evaluate whether current or proposed surveillance laws and practices are consistent with human rights.
These principles are the outcome of a global consultation with civil society groups, industry and international experts in communications surveillance law, policy and technology.
Privacy is a fundamental human right, and is central to the maintenance of democratic societies. It is essential to human dignity and it reinforces other rights, such as freedom of expression and information, and freedom of association, and is recognised under international human rights law. Activities that restrict the right to privacy, including communications surveillance, can only be justified when they are prescribed by law, they are necessary to achieve a legitimate aim, and are proportionate to the aim pursued.
Before public adoption of the Internet, well-established legal principles and logistical burdens inherent in monitoring communications created limits to State communications surveillance. In recent decades, those logistical barriers to surveillance have decreased and the application of legal principles in new technological contexts has become unclear. The explosion of digital communications content and information about communications, or “communications metadata” — information about an individual’s communications or use of electronic devices — the falling cost of storing and mining large sets of data, and the provision of personal content through third party service providers make State surveillance possible at an unprecedented scale. Meanwhile, conceptualisations of existing human rights law have not kept up with the modern and changing communications surveillance capabilities of the State, the ability of the State to combine and organize information gained from different surveillance techniques, or the increased sensitivity of the information available to be accessed.
The frequency with which States are seeking access to both communications content and communications metadata is rising dramatically, without adequate scrutiny. When accessed and analysed, communications metadata may create a profile of an individual’s life, including medical conditions, political and religious viewpoints, associations, interactions and interests, disclosing as much detail as, or even greater detail than would be discernible from the content of communications. Despite the vast potential for intrusion into an individual’s life and the chilling effect on political and other associations, legislative and policy instruments often afford communications metadata a lower level of protection and do not place sufficient restrictions on how they can be subsequently used by agencies, including how they are data-mined, shared, and retained.