If it had happened on House of Cards, you’d have enjoyed the theater of it, but figured that the writers had taken some artistic license in the timing. I mean, it just doesn’t happen in real life that the UN releases a report on the dangers of government surveillance on the internet immediately before the news breaks that the US Government has been conducting internet surveillance of previously unimagined proportions. Critics could unkindly say this is because the UN is never ahead of the game, but in this case, you have to hand it to Frank La Rue – he has clearly authored an exceptionally timely report: 4 June 2013 – “Freedom of expression cannot be ensured without respect to privacy in communications,” United Nations Special Rapporteur Frank La Rue said today, calling for more global attention to the widespread use of surveillance technologies by States in violation of the human rights to privacy and freedom of expression.
5 June 2013 - The National Security Agency is currently collecting the telephone records of millions of US customers of Verizon, one of America's largest telecoms providers, under a top secret court order issued in April.
6 June 2013 - The National Security Agency has obtained direct access to the systems of Google, Facebook, Apple and other US internet giants …. The NSA access is part of a previously undisclosed program called PRISM, which allows officials to collect material including search history, the content of emails, file transfers and live chats, the document says.
The right to privacy is a fundamental freedom in its own right (pardon the pun), but also as an important enabler for other rights such as the freedom of speech. And yet, the right to privacy is a qualified right. La Rue’s report notes that international human rights law is not sufficiently nuanced to provide clear guidance for countries and individuals when trying to understand what (if any) government intrusions into an individual’s electronic communications are acceptable. In general terms, the right to privacy can be limited if the restrictions:
- are provided by the law;
- do not go to ‘the essence’ of the human right
- are necessary in a democratic society;
- are not subject to unfettered discretion;
- are necessary for reaching an enumerated legitimate aim; and
- are proportionate (ie the least intrusive instrument to achieve the desired result, and the restrictions are proportionate to the interest to be protected).
It may well be that the US government’s electronic surveillance activities are permissible restrictions on the right to privacy under international human rights law. The answer is in the detail of whether the restrictions are ‘necessary’, ‘proportionate’ and sufficiently fettered. To satisfy this test, the government would certainly need to make some pretty convincing arguments. President Obama’s brief defence of the program focuses on the fact that the surveillance only looks at ‘meta-data’, in order to identify patterns. This type of pattern can be invaluable in identifying potential security threats, and national security is clearly a legitimate aim in a democratic society. However, the intrusion on privacy is only acceptable if the level of discretion, oversight and proportionality are adequate, and this can by no means be assumed in the current circumstances.
La Rue’s report concludes by making 17 recommendations. Many of these recommendations relate to transparency, accountability and public awareness. For example, he states that laws governing electronic surveillance should meet ‘a standard of clarity and precision that is sufficient to ensure that individuals have advance notice of and can foresee their application’. In essence, his recommendations capture a sense that reasonable citizens should not be alarmed to learn of the type of surveillance that occurs, should acknowledge that the surveillance is of value and should be reassured that there are adequate oversight mechanisms in place. Once again, his report is right on the money; the level of outcry in the US media and around water coolers this morning indicates that the current surveillance policies are not meeting the public 'sniff test'. Something smells decidedly off.
So often, UN reports end with a plea for increased public awareness and further discussion about the issues, but any resulting debate is limited to the international law nerds and human rights nuts amongst us. However, the freakishly good timing of La Rue’s report may just mean that the issues that he has raised capture mainstream attention and generate some real public debate.