Human Rights And Mass Surveillance

Can you imagine a world where our communications and activities can be collected, analysed, and stored at low cost? At the same time, commercial imperatives drive a range of companies to amass vast stores of information about you, the way you act on social media, your health, finances, and shopping habits. The problem is there is nothing to imagine. We are living in the age of «big data».

The technological impact on human rights becomes more and more evident and perceptible. The development of information technologies today influences human rights on different levels. It has become a controversial subject of much debate.

Until the summer of 2013 there was no wide-scale critical discourse regarding governments’ actions in mass surveillance. But since National Security Agency (NSA) contractor began releasing irrefutable evidence of mass surveillance, political landscape on global lurking has changed dramatically. The name of that whistleblower is quite familiar – Edward Snowden – as he became a subject of numerous reports about violation of right of privacy by the US and UK. Snowden published a list of documents, which are confirming that the NSA and their partners, Government Communications Headquarters (GCHQ), helped each other in mass surveillance.

Before methods of mass surveillance has been revealed, a diverse range of states were supporting and promoting the global movement for Internet freedom. They had formed the Freedom Online Coalition, led by United Stated, United Kingdom, and their allies. Snowden’s revelations discovered mismatch between the stated values of the UK and US and their secret behaviour.

These governments were systematically violating the right of privacy and collecting data on hundreds of million people, including not only their own citizens but also non-citizens worldwide.

It’s important to outline the difference between classic way of surveillance (targeted) and modern, mass surveillance (strategic). Before the invention of digital surveillance instruments, investigative agencies had relatively narrow spectrum of tracking methods. It was possible to find a threat, and then covertly collect conversations, telecommunications and metadata of particular person or a group. The mass surveillance is a game-changing technology. The Committee on Privacy in the Information Age describes these technologies as “new ways of collecting and handling information that in turn have ramifications throughout society, as they mediate much private and public communication, interaction, and transactions”. Mass surveillance pursues proactive aims in the identifying possibility of a crime, rather than investigating a known danger. The intelligence’s ability to collect all our data have undoubted value for security operations, but it also hides the risk for individual rights.

To make it easier to spy on people, governments imperceptibly weakened Internet security, making every Internet user more vulnerable to hacker attacks and personal data thieves. The problem of mass surveillance refers not only to the US and UK governments. Everywhere states are expanding their own mass surveillance abilities.

Though espionage and surveillance have always been a part of sociopolitical reality, the introduction of powerful personal computation technologies to the consumer market have brought the same tactics of interference and manipulation to the individual level, redefining the contemporary frontier of human rights.

The right to privacy and freedom of expression

Undeniably, human rights issues arise as regards to mass surveillance. There are at least two Universal Declaration rights violated: right of privacy (UDHR Article 12) and freedom of expression (UDHR Article 10). There is strong connection between these rights. Because of mass surveillance, one’s cannot express himself freely anymore. The preamble to the Resolution of the General Assembly of the UN from 18 December 2013 (Resolution 68/167) insists on the «negative impact that surveillance and the interception of communications, including extraterritorial surveillance and interception, on a mass scale, has on the exercise and enjoyment of human rights». The Resolution calls upon states to respect the right to privacy and prevent violations.

On April 3, 2013 a former member of European Parliament commented: «every candidate in the May 2014 European Parliament elections is conscious of the chilling effect that mass surveillance has had on them personally. The fact that every email they have sent, every photo they have forwarded by email, is available to the intelligence service of a foreign country has a chilling effect on freedom of expression. Who can be sure that something which they casually put into a personal email could not be used to contradict one of their election promises, or some photo that they sent could not be used to compromise their probity as representatives»?

We already know some accidents, when politician’s right to privacy has been violated, and that led to severe political consequences. Spying on politicians endangers compliance with regulations of Article 21 of UDHR: «1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives; 2. Everyone has the right of equal access to public service in his country», as if the politician is compromised by snooping, we cannot guarantee fair outcome of election.

For example, on January 4, hundreds of German politicians, including Angela Merkel, were hacked in massive data leak. The leaked information didn’t include information from far-right Alternative for Germany (AfD) members. That no AfD politician was affected prompted speculation that far-right sympathisers were behind the leaks.

The other startling recent illustration is the scandal around Trump-Zelensky non-official relationship, started when a whistleblower from the White House claimed that Trump offered Ukrainian president Justice Department help in an investigation of Joe Biden, one of his chief political rivals.

The US president’s attempt to ask to investigate his political opponent with help of the other country had escalated confrontation between the White House and Congress on Trump’s impeachment and influenced Zelensky’s trust rating.

Justified interference

Because of highly complex forms of terrorism, we cannot fully exclude surveillance from governments’ duties. However, surveillance and disclosure of personal data have to be justified. First a person have to consent the interference with a privacy, and only then government will have a right to make that interference, as it is up to person to decide what information can be shared with others and what cannot.

There is a substantial andThe issue of duty of state to protect personal data is generally the subject of substantial and unstoppable political and media noise on the states’ duty to protect personal data. Political promoters of the legality of mass surveillance are usually using two arguments. First, national and international security is the subject of an exception to both the duty of every state to respect individual’s privacy and the duty to protect personal data. In case of an objective consideration of these arguments, it becomes clear that they are on very weak legal ground. The second is that states’ obligation to protect personal data can vary from one government to another. Hence there are different rules and requirements to particular state and no harmonisation of the specific international rules. States which are exercising national and international mass surveillance have to fulfil only their own data protection rules.

Where the intelligence service is trying to interfere with right to privacy and to get access to personal data, such an action must be justified by public bodies. It is crucial to have lawful oversight of any state interaction and a person influenced by an interference must have access to justice to challenge that government’s action.

The nature of mass surveillance is coverage of the maximum possible volume of people, not targeting anybody specifically. So it is extremely difficult task to justify the interference. Human Rights court repeatedly found mass surveillance techniques inconsistent with the right to respect for privacy in different countries.