(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms. [...] The Court considers, first, that the search of the applicants’ flat and the seizure of the applicants’ personal belongings constituted an interference with the exercise of the applicants’ right to respect for their private life and home within the meaning of Article 8 § 1 of the Convention (see Avaz Zeynalov v. [...] The Court further reiterates that the expression “in accordance with the law”, within the meaning of Article 8 § 2 of the Convention, requires the impugned measure to have some basis in domestic law and be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and inherent in the object and purpose of Article 8. [...] Although the applicant did not complain that the quality of the domestic law had fallen short of the Convention standards, when examining whether the interference complained of was “in accordance with the law”, the Court must assess the quality of the relevant domestic law in relation to the requirements of the fundamental principle of the rule of law. [...] The Court will therefore assess in turn the accessibility of the domestic law, the scope and duration of the secret surveillance measures, the procedures to be followed for storing, accessing, examining, using, communicating and destroying the intercepted data, the authorisation procedures, the arrangements for supervising the implementation of secret surveillance measures, any notification mechan.
Authors
- Pages
- 402
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- United Kingdom
Table of Contents
- About PI’s guide to international law and surveillance 4
- Section 1: The right to privacy in international and regional treaties 6
- Section 2: Surveillance and the right to privacy principles 9
- A. Affirmation of the principles underpinning the right to privacy 9
- Report of the Office of the United Nations High Commissioner for Human Rights, The right to privacy in the digital age, UN Doc A/HRC/51/17 (4 August 2022) 12
- 51. Necessity and proportionality: while public surveillance may be permissible, States must demonstrate that measures are both necessary and proportionate. However, the effectiveness of surveillance measures is often doubtful, raising serious questio... 12
- Concluding Observations on the Fifth Periodic Report of the Republic of Korea, Human Rights Committee, UN Doc CCPR/C/KOR/CO/5 (30 October 2023) 14
- 50. The State party should: (a) Ensure that all types of surveillance activities and interference with privacy – including online surveillance, interception of communications and communications data (metadata) and retrieval of data – are governed by a... 14
- Concluding Observations on the Fifth Periodic Report of the United States of America, Human Rights Committee, UN Doc CCPR/C/USA/CO/5 (30 October 2023) 14
- Concluding Observations on the Fourth Periodic Report of the Islamic Republic of Iran, Human Rights Committee, UN Doc CCPR/C/IRN/CO/4 (26 October 2023) 14
- Concluding Observations on the Second Periodic Report of Lesotho, UN Doc CCPR/C/LSO/CO/2 (21 July 2023) 15
- 50. The State party should: (a) Provide adequate human and financial resources for the operationalization of the Data Protection Commission so that it can effectively ensure the protection of the right to privacy in an independent manner; (b) Ensure t... 15
- Concluding Observations on the Eighth Periodic Report of Colombia, UN Doc CCPR/C/COL/CO/8 (21 July 2023) 15
- 31. The State party should ensure that all types of surveillance, including online surveillance, and interference with privacy are in full compliance with article 17 of the Covenant, with full respect for the principles of legality, proportionality an... 15
- Concluding Observations on the Seventh Periodic Report of Japan, Human Rights Committee, UN Doc CCPR/C/JPN/CO/7 (28 October 2022) 15
- 35. The State party should bring its regulations governing data retention and access, surveillance and interception activities into conformity with the Covenant, in particular article 17 thereof, and ensure strict adherence to the principles of legali... 15
- B. The Principle of legality 20
- Report of the Office of the United Nations High Commissioner for Human Rights, The right to privacy in the digital age, UN Doc A/HRC/51/17 (4 August 2022) 23
- Concluding Observations on the Fourth Periodic Report of Hong Kong, China, Human Rights Committee, UN Doc CCPR/C/CHN-HKG/CO/4 (22 July 2022) 24
- 39. The Committee is concerned that section 3 (1) (a) of the Interception of Communications and Surveillance (Amendment) Ordinance, article 43 (6) of the National Security Law and schedule 6 of the implementation rules, which facilitate arbitrary intr... 24
- 40. Hong Kong, China, should: 24
- (a) Pending the repeal of the National Security Law, refrain from applying article 43 (6) thereof and schedule 6 of the implementation rules; 24
- (b) Take concrete steps to bring the Interception of Communications and Surveillance (Amendment) Ordinance and the Personal Data (Privacy) (Amendment) Ordinance 2021 into line with article 17 of the Covenant; 24
- i. Accessibility requirement 41
- ii. Foreseeability requirement 44
- C. The Principle of necessity 57
- Report of the Office of the United Nations High Commissioner for Human Rights, The right to privacy in the digital age, UN Doc A/HRC/51/17 (4 August 2022) 61
- D. The Principle of proportionality 89
- E. The Principle of adequate safeguards 102
- Concluding Observations on the Fifth Periodic Report on the Philippines, Human Rights Committee, UN Doc CCPR/C/PHL/CO/5 (28 October 2022) 104
- i. Reasonable suspicion 111
- ii. Judicial authorisation 114
- Concluding Observations on the Fifth Periodic Report of the Republic of Korea, Human Rights Committee, UN Doc CCPR/C/KOR/CO/5 (30 October 2023) 116
- Concluding Observations on the Initial Report of the State of Palestine, UN Doc CCPR/C/PSE/CO/1 (21 July 2023) 117
- Concluding Observations on the Fourth Periodic Report of Nicaragua, Human Rights Committee, UN Doc CCPR/C/NIC/CO/4 (31 October 2022) 117
- 32. […] the Committee urges the State party to: (c) […] ensure that the surveillance and interception of communications are subject to judicial authorization and that the individuals concerned have adequate access to effective remedies. 117
- Concluding Observations on the Fifth Periodic Report of the Philippines, Human Rights Committee, UN Doc CCPR/C/PHL/CO/5 (28 October 2022) 117
- 14. The State party should: […] (d) Ensure that any interference with the right to privacy, including through the publication of the personal data of individuals suspected of terrorist acts and surveillance activities, requires prior authorization fr... 117
- iii. Effective oversight 135
- Report of the Special Rapporteur on the Promotion and Protection of Human Rights while Counter-Terrorism, Human Rights Implications of the Development, Use, Transfer of New Technologies in the Context of Counter-Terrorism and Countering and Preventing... 137
- 50. Finally, she highlights the necessity of independent oversight for surveillance and data collection premised on national security or counter-terrorism grounds. Noting that intelligence agencies are driving and adapting technological change and dep... 137
- 56. The Special Rapporteur recommends that States: (d) Establish and support adequately resourced and independent oversight of new technologies in counter-terrorism and security contexts. This includes the establishment of independent data privacy ove... 138
- Concluding Observations on the Fifth Periodic Report of the Republic of Korea, Human Rights Committee, UN Doc CCPR/C/KOR/CO/5 (30 October 2023) 139
- 22. […] It should guarantee independent and effective oversight of law enforcement and security forces in the context of counter-terrorism investigations and surveillance, including timely judicial supervision and review. 139
- Concluding Observations on the Initial Report of the State of Palestine, UN Doc CCPR/C/PSE/CO/1 (21 July 2023) 140
- 37. […] The Committee is particularly concerned about reports that the Preventive Security Service, which conducts electronic surveillance, is granted extensive monitoring powers, and that the existing oversight mechanism over its activities is not ef... 140
- 38. In the light of the Committee’s general comment No. 16 (1988) on right to privacy, the State party should: (a) Ensure that any interference with the right to privacy, including activities carried out by the Preventive Security Service under Decree... 140
- Concluding Observations on the Seventh Periodic Report of Japan, Human Rights Committee, UN Doc CCPR/C/JPN/CO/7 (28 October 2022) 140
- iv. Data protection in surveillance 152
- Expressing concern that children often do not and/or cannot provide their free, explicit and informed consent to the collection, processing and storage of their data or to the reuse, sale or multiple resale of their personal information, as the collec... 154
- 43. Urges States to prohibit the unlawful digital surveillance of children, with due regard to commercial settings and educational and care settings, to work towards enabling secure communications and the protection of individual users against arbitra... 154
- UN General Assembly Resolution on the Promotion and Protection of Human Right in the Context of Digital Technologies, UN Doc A/RES/78/213 (19 December 2023) 154
- Concluding Observations on the Fifth Periodic Report of the United States of America, Human Rights Committee, UN Doc CCPR/C/USA/CO/5 (30 October 2023) 157
- 56. […] The Committee is also concerned at reports that government agencies, such as Immigration and Customs Enforcement, have used databases of personal information systematically collected by private entities without the consent of the individuals c... 157
- Concluding Observations on the Initial Report of the State of Palestine, Human Rights Committee, UN Doc CCPR/C/PSE/CO/1 (21 July 2023) 157
- Concluding Observations on the Fourth Periodic Report of Hong Kong, China, Human Rights Committee, UN Doc CCPR/C/CHN-HKG/CO/4 (22 July 2022) 157
- 40. Hong Kong, China, should: (d) Ensure that the data collected through the digital applications used in the context of COVID-19 response are used strictly for specified and legitimate objectives and are deleted when such objectives have been met. 157
- Concluding Observations on the Fifth Periodic Report of Ireland, Human Rights Committee, UN Doc CCPR/C/IRL/CO/5 (22 July 2022) 157
- 46. […] The State party should also ensure that the processing and collection of personal data are subject to effective independent oversight mechanisms and that there is access to effective remedies in cases of abuse. 157
- v. Transparency requirements 169
- UN General Assembly Resolution on the Right to Privacy in the Digital Age, UN Doc A/RES/77/211 (15 December 2022)* 171
- vi. Safeguards in intelligence sharing and data transfers 174
- Report of the Special Rapporteur on the Promotion and Protection of Human Rights while Counter-Terrorism, Human Rights Implications of the Development, Use, Transfer of New Technologies in the Context of Counter-Terrorism and Countering and Preventing... 178
- 50. […] Finally, she stresses that it is urgent that a human rights-compliant review of intelligence cooperation be undertaken, which will require consistent screening of transferred intelligence by methods such as data-sharing alerts to oversight bod... 178
- vii. Communications data (Metadata) 188
- Report of the Special Rapporteur on the Promotion and Protection of Human Rights while Counter-Terrorism, Human Rights Implications of the Development, Use, Transfer of New Technologies in the Context of Counter-Terrorism and Countering and Preventing... 190
- 45. The impact of surveillance on multiple human rights is considerable. The Special Rapporteur highlights that the right to privacy functions as a gateway right protecting and enabling many other rights and freedoms, and its protection is intimately ... 190
- viii. Access to remedy: victimhood, standing, and notification 194
- UN General Assembly Resolution on the Promotion and Protection of Human Right in the Context of Digital Technologies, UN Doc A/RES/78/213 (19 December 2023) 198
- 16. Calls upon Member States to ensure that […] that legal mechanisms of redress and effective remedies are available for victims of surveillance-related violations and abuses; 198
- UN General Assembly Resolution on the Right to Privacy in the Digital Age, UN Doc A/RES/77/211 (15 December 2022)* 198
- Concluding Observations on the Fifth Periodic Report of the Republic of Korea, Human Rights Committee, UN Doc CCPR/C/KOR/CO/5 (30 October 2023) 200
- 50. The State party should: (c) Ensure that affected persons are notified of the surveillance and interception activities to which they have been subjected, where possible, and that they have access to effective remedies in cases of abuse. 200
- Concluding Observations on the Fifth Periodic Report of the United States of America, Human Rights Committee, UN Doc CCPR/C/USA/CO/5 (30 October 2023) 200
- 57. […]. It should ensure that those responsible are brought to justice and, if found guilty, punished with appropriate sanctions, and that victims of human rights violations and abuses linked to the use of surveillance systems have access to effectiv... 200
- Concluding Observations on the Initial Report of the State of Palestine, UN Doc CCPR/C/PSE/CO/1 (21 July 2023) 200
- 38. In the light of the Committee’s general comment No. 16 (1988) on right to privacy, the State party should: (d) Strengthen existing monitoring mechanisms to ensure that all allegations of abuse are thoroughly investigated, that such investigations ... 200
- Concluding Observations on the Seventh Periodic Report of Japan, Human Rights Committee, UN Doc CCPR/C/JPN/CO/7 (28 October 2022) 201
- 35. [The State Party] should ensure that any interference with the right to privacy requires prior authorization by a court and is subject to effective and independent oversight mechanisms, and that affected persons are notified of the surveillance an... 201
- ix. duty to protect against third-party interference and access to remedy 222
- UN General Assembly Resolution on the Right to Privacy in the Digital Age, UN Doc A/RES/77/211 (15 December 2022)* 222
- Noting that general comment No. 16 of the Human Rights Committee recommends that States take effective measures to prevent the unlawful retention, processing and use of personal data stored by public authorities and business enterprises, 222
- * See also UN General Assembly Resolution on the Right to Privacy in the Digital Age, UN Doc A/RES/75/176 (28 December 2020); UN General Assembly Resolution on the Right to Privacy in the Digital Age, UN Doc A/RES/73/179 (17 December 2018); UN General... 222
- Report of the Special Rapporteur on the Promotion and Protection of Human Rights while Counter-Terrorism, Human Rights Implications of the Development, Use, Transfer of New Technologies in the Context of Counter-Terrorism and Countering and Preventing... 223
- x. Due diligence including impact assessments 223
- UN General Assembly Resolution on the Right to Privacy in the Digital Age, UN Doc A/RES/77/211 (15 December 2022)* 225
- 6. Acknowledges that the conception, design, use, deployment and further development of new and emerging technologies, such as those that involve artificial intelligence, may have an impact on the enjoyment of the right to privacy and other human righ... 225
- *See also UN General Assembly Resolution on the Right to Privacy in the Digital Age, UN Doc A/RES/75/176 (16 December 2020); UN General Assembly Resolution on the Right to Privacy in the Digital Age, UN Doc A/RES/73/179 (17 December 2018); UN General ... 225
- UN Human Rights Council Resolution on the Right to Privacy in the Digital Age, UN Doc A/HRC/RES/54/21 (12 October 2023) 225
- Report of the Office of the United Nations High Commissioner for Human Rights, ‘The practical application of the Guiding Principles on Business and Human Rights to the activities of technology companies’, UN Doc A/HRC/50/56 (21 April 2022) 226
- 32. The requirement for companies to undertake human rights due diligence across their activities and business relationships to identify, prevent, mitigate and account for how they address the actual and potential human rights harms connected to their... 226
- 37. Human rights due diligence should be done with reference to all internationally recognized human rights (guiding principle 12, commentary). For many in the technology sector, questions will arise about the company’s impacts on privacy and freedom ... 226
- Section 3: Safeguarding civic spaces 229
- a. Professional confidentiality and privileged communications –Legal professional privilege 230
- b. Professional confidentiality and privileged communications – Protection of journalists’ sources 239
- c. Safety of journalists and human rights defenders 243
- UN General Assembly Resolution on the Promotion and Protection of Human Right in the Context of Digital Technologies, UN Doc A/RES/78/213 (19 December 2023) 246
- Noting with deep concern the use of technological tools developed by the private surveillance industry and by private or public actors to undertake surveillance, hacking of devices and systems, interception and disruption of communications, and data c... 246
- 17. Emphasizes that, in the digital age, encryption and anonymity tools have become vital for many journalists and media workers to freely exercise their work and their enjoyment of human rights, in particular their rights to freedom of expression and... 246
- UN General Assembly Resolution on the Right to Privacy in the Digital Age, UN Doc A/RES/77/211 (15 December 2022) 247
- UN Human Rights Council Resolution on the Right to Privacy in the Digital Age, UN Doc A/HRC/RES/54/21 (12 October 2023)* 247
- Report of the Office of the United Nations High Commissioner for Human Rights, The right to privacy in the digital age, UN Doc A/HRC/51/17 (4 August 2022) 250
- 18. […] While, in certain circumstances, intrusive surveillance measures may be permissible under articles 17 and 19 of the International Covenant on Civil and Political Rights on grounds of the protection of national security or public order, hacking... 250
- Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, UN Doc A/78/520 (10 October 2023) 250
- Report of the Special Rapporteur on the Promotion and Protection of Human Rights while Counter-Terrorism, Human Rights Implications of the Development, Use, Transfer of New Technologies in the Context of Counter-Terrorism and Countering and Preventing... 251
- Concluding Observations on the Fourth Periodic Report of the Islamic Republic of Iran, Human Rights Committee, UN Doc CCPR/C/IRN/CO/4 (26 October 2023) 254
- 45. The Committee is concerned about reports of targeted surveillance and monitoring of individuals, in particular human rights defenders, journalists and activists, and regrets the lack of information on the legal safeguards applied in the surveillan... 254
- Concluding Observations on the Eighth Periodic Report of Colombia, UN Doc CCPR/C/COL/CO/8 (21 July 2023) 254
- 30. The Committee notes with concern the illegal surveillance activities allegedly conducted against human rights defenders and journalists, as well as the monitoring of social media by the Integrated Cybersecurity Command in the context of social pro... 254
- d. Protest surveillance 257
- 65. […] the Working Group recommends that States: (j) Ensure that individuals or civil society organizations targeted can exercise their right to an effective remedy and obtain reparation; 267
- Report of the Special Rapporteur on the Promotion and Protection of Human Rights while Counter-Terrorism, Human Rights Implications of the Development, Use, Transfer of New Technologies in the Context of Counter-Terrorism and Countering and Preventing... 267
- 68. In both violating indigenous peoples’ rights and limiting their advocacy against such violations, several States allegedly have intimidated, surveilled, threatened, arbitrarily arrested or violently attacked peaceful indigenous protestors with exc... 268
- Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and Association, ‘Protection of human rights in the context of peaceful protests during crisis situations’, UN Doc A/HRC/50/42 (16 May 2022) 268
- 58. States have employed various new technologies during protests in the context of crises, including surveillance technologies such as CCTV cameras, body cameras and aerial surveillance vehicles, and face recognition technology. Surveillance technolo... 268
- 78. In regard to respecting and enabling peaceful protest during crisis situations, States should: (m) Refrain from the use of biometric identification and recognition technologies, such as facial recognition, for arbitrary surveillance of protesters,... 268
- Concluding Observations on the Eighth Periodic Report of the Russian Federation, Human Rights Committee, UN Doc CCPR/C/RUS/CO/8 (1 November 2022) 270
- 32. […] It is concerned about reports that participation in assemblies is hampered by the use of preventive detention and by the use of facial recognition systems that are not regulated by law, including in regard to the procedure for storing and revi... 270
- 33. In accordance with article 21 of the Covenant and in the light of the Committee’s general comment No. 37 (2020) on the right of peaceful assembly, the State party should: (e) Refrain from the use of facial recognition systems and the practice of p... 270
- Section 4: Surveillance and other human rights provisions 274
- A. Surveillance and the jurisdictional clause (extraterritorial application) 274
- B. Surveillance and the principle of non-discrimination 279
- UN General Assembly Resolution on the Right to Privacy in the Digital Age, UN Doc A/RES/77/211 (15 December 2022)* 283
- Noting also that violations and abuses of the right to privacy in the digital age can affect all individuals, with particular effects on women, children, in particular girls, persons with disabilities and older persons, as well as those in vulnerable ... 283
- Noting that the use of artificial intelligence may, without proper technical, regulatory, legal and ethical safeguards, pose the risk of reinforcing discrimination, including structural inequalities, and recognizing that racially and otherwise discrim... 283
- Noting with concern reports indicating lower accuracy of facial recognition technologies with certain groups, including when non-representative training data are used, that the use of digital technologies can exacerbate racial inequality and in this c... 283
- Noting with concern that automatic processing of personal data for individual profiling, automated decision-making and machine learning technologies may, without adequate safeguards, lead to discrimination or decisions that otherwise have the potentia... 283
- * See also UN Human Rights Council Resolution on the Right to Privacy in the Digital Age, UN Doc A/HRC/RES/34/7 (23 March 2017) 283
- Report of the Office of the United Nations High Commissioner for Human Rights, The right to privacy in the digital age, UN Doc A/HRC/51/17 (4 August 2022) 283
- 46. Surveillance operations tend to disproportionately target minorities and marginalized communities. The use of artificial intelligence risks perpetuating such patterns of discrimination, including the use of facial recognition technologies for raci... 283
- 62. Insufficient protection for digital health data can leave marginalized groups vulnerable to criminalization, stigma, discrimination and violence. In certain circumstances, and depending on the legal framework in place, companies and even public se... 284
- 85. Digital technologies can improve access for individuals who face discrimination and/or otherwise lack access to health facilities, goods and services. However, the use of digital technologies, without sufficient human rights safeguards, also deepe... 284
- 99. States must embed human rights principles of equality, non-discrimination, participation, transparency and accountability in implementation, in order to meet their obligations to respect, protect and fulfil the right to health in relation to digit... 284
- 100. An intersectional rights-based approach to digital innovation and technologies must be adopted to move towards substantive equality and create the conditions conducive to a life of dignity. 284
- 27. States and non-State actors should: (b) Respect, protect and facilitate the right to privacy to enable individuals to enjoy other rights, such as the rights to assemble and express opinions, irrespective of their gender, by: (ii) Reducing infringe... 286
- Section 5: Mass surveillance programmes 290
- UN Human Rights Council Resolution on the Right to Privacy in the Digital Age, UN Doc A/HRC/RES/54/21 (12 October 2023)* 305
- Section 6: Surveillance-related capabilities 328
- A. Encryption and “Going Dark” 328
- UN General Assembly Resolution on the Promotion and Protection of Human Right in the Context of Digital Technologies, UN Doc A/RES/78/213 (19 December 2023) 333
- 11. Encourages business enterprises, including communications service providers, to work towards enabling solutions to secure and protect the confidentiality of digital communications and transactions, including measures for encryption, pseudonymizati... 334
- 66. […] Encryption is a key enabler of privacy and security online, and it is essential for safeguarding rights, including the rights to freedom of opinion and expression, freedom of association and peaceful assembly. It ensures that individuals can s... 335
- B. The Debate over hacking, including spyware and vulnerability exploitation 338
- UN General Assembly Resolution on the Promotion and Protection of Human Right in the Context of Digital Technologies, UN Doc A/RES/78/213 (19 December 2023) 341
- Noting with deep concern the use of technological tools developed by the private surveillance industry and by private or public actors to undertake surveillance, hacking of devices and systems, interception and disruption of communications, and data c... 341
- Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, UN Doc A/78/520 (10 October 2023) 341
- 33. The ubiquity of sophisticated communications surveillance poses obvious threats to civil society actors’ and organizations’ rights to privacy and free expression, as well as such related rights as the freedom of assembly and association and the fr... 341
- Report of the Special Rapporteur on the Promotion and Protection of Human Rights while Counter-Terrorism, Human Rights Implications of the Development, Use, Transfer of New Technologies in the Context of Counter-Terrorism and Countering and Preventing... 342
- C. Biometric data processing in surveillance 346
- UN General Assembly Resolution on the Promotion and Protection of Human Right in the Context of Digital Technologies, UN Doc A/RES/78/213 (19 December 2023) 349
- 20. Calls upon Member States and, where applicable, other stakeholders: (d) To ensure that digital or biometric identity programmes are designed, implemented and operated after appropriate human rights standards, as well as technical, regulatory, lega... 349
- Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, UN Doc A/78/520 (10 October 2023) 350
- (k) Guarantee that collection, retention and use of biometric and genetic data is regulated in law and in practice, is narrow in scope, transparent, necessary and proportionate to meeting a legitimate security goal, and is not based on any distinction... 350
- (l) Review, through a multi-disciplinary process, the adequacy of the applicable policies and legal frameworks, to devise strategies to prevent and address negative impact on human rights generated by the use of new technologies, including machine-lea... 350
- (m) Ensure that mass and targeted surveillance technologies, as well as AI and machine-learning solutions, are not used at borders for the purposes of performing pushback operations that may lead, and in certain cases amount to, enforced disappearance... 350
- Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and Association, ‘Protection of human rights in the context of peaceful protests during crisis situations’, UN Doc A/HRC/50/42 (16 May 2022) 350
- 78. In regard to respecting and enabling peaceful protest during crisis situations, States should: (m) Refrain from the use of biometric identification and recognition technologies, such as facial recognition, for arbitrary surveillance of protesters,... 351
- Report of the Special Rapporteur on the Promotion and Protection of Human Rights while Counter-Terrorism, Human Rights Implications of the Development, Use, Transfer of New Technologies in the Context of Counter-Terrorism and Countering and Preventing... 351
- 20. The Special Rapporteur, among others, has raised concerns regarding the collection of the biometric data of vulnerable populations and persons in diverse contexts. The collection of biometric data of populations in conflict zones, including in Ira... 351
- 21. She highlights that the coronavirus disease (COVID-19) pandemic has accelerated biometric data collection and both further exceptionalized and normalized its use, including the deployment of biometric capacity developed for counter-terrorism and s... 351
- 23. This concerted policy drive towards comprehensive biometrics collection has not been undergirded by the necessary work to achieve an adequate worldwide legal and regulatory regime. Indeed, instead of leading a comprehensive effort to agree on a se... 351
- 24. The Special Rapporteur’s particular concerns regarding the Programme and the system of personal data collection it supports include: (a) the collection of data in principle, given the degree of detail that the data, particularly passenger name rec... 351
- 26. She also highlights her profound concerns about biometric data-sharing, which is strongly encouraged by the international community. One striking motif of normative counter-terrorism regulation has been the increased emphasis on the cooperation be... 352
- Concluding Observations on the Eighth Periodic Report of the Russian Federation, Human Rights Committee, UN Doc CCPR/C/RUS/CO/8 (1 November 2022) 352
- 32. […] It is concerned about reports that participation in assemblies is hampered by the use of preventive detention and by the use of facial recognition systems that are not regulated by law, including in regard to the procedure for storing and revi... 352
- 33. In accordance with article 21 of the Covenant and in the light of the Committee’s general comment No. 37 (2020) on the right of peaceful assembly, the State party should: (e) Refrain from the use of facial recognition systems and the practice of p... 352
- Section 6: The role and responsibilities of companies in surveillance 363
- 11. Encourages business enterprises, including communications service providers, to work towards enabling solutions to secure and protect the confidentiality of digital communications and transactions, including measures for encryption, pseudonymizati... 372
- Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, UN Doc A/78/520 (10 October 2023) 372
- 33. The ubiquity of sophisticated communications surveillance poses obvious threats to civil society actors’ and organizations’ rights to privacy and free expression, as well as such related rights as the freedom of assembly and association and the fr... 372
- 69. The Working Group recommends that other human rights mechanisms and international courts: (a) Promote accountability for States, corporations or individuals responsible for the misuse of targeted or mass surveillance technologies, as well as in cy... 373
- Report of the Special Rapporteur on the Promotion and Protection of Human Rights while Counter-Terrorism, Human Rights Implications of the Development, Use, Transfer of New Technologies in the Context of Counter-Terrorism and Countering and Preventing... 374
- 47. While in previous eras spycraft and surveillance technology tended to be the exclusive preserve of government agencies and in-house technical experts, in the modern era the vast majority of surveillance tools used by State agencies are obtained fr... 374
- 59. The Special Rapporteur emphasizes that: 374
- (a) Business enterprises in new technology sectors must practically and publicly implement their operations guided by respect for international human rights law and act with due diligence so as to avoid adverse impacts on individuals and communities, ... 374
- (b) Business enterprises in new technology must conduct comprehensive human rights due diligence. This includes conducting risk assessments of actual and potential human rights impacts, both direct and indirect, during all phases of business operations; 374
- (c) Businesses enterprises engaged in the development, use and transfer of high-risk new technologies must be subject to more stringent regulation and oversight by legislatures, courts and international regulation, including significant financial and ... 374
- Section 7: Acquiring and selling surveillance equipment 379
- 20. Spyware programmes can be acquired by Governments, mostly in a context that, in general, lacks independent oversight and sufficient regulation, especially with regard to import, export and use of such a technology. The Working Group learned with i... 383
- 21. Instances where those – be they States, corporations or individuals – responsible for the misuse of surveillance technologies or abuses in their sale and transfer have been held to account are extremely rare. Until regulatory gaps are addressed in... 383
- 65. […] the Working Group recommends that States: 383
- (g) Impose an immediate moratorium on the export, sale, transfer, use or servicing of privately developed targeted and mass surveillance tools, including spyware, facial-recognition and similar programmes, until a human rights-compliant safeguards reg... 383
- (h) Develop and enforce without delay a legal framework by which the licensing of any technology, and especially targeted and mass surveillance technologies, would be conditional upon a national human rights review and corporations’ compliance with th... 383
- (i) Take all necessary measures to investigate, prosecute and hold accountable individuals, corporations and States responsible for human rights violations related to the sale, transfer and use of targeted and mass surveillance technologies; 384
- List of sources 385
- UN General Assembly Resolution on the Right to Privacy in the Digital Age, UN Doc A/RES/77/211 (15 December 2022) 386
- UN General Assembly Resolution on the Safety of Journalists and the Issue of Impunity, UN Doc A/RES/78/215 (19 December 2023) 386
- Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, UN Doc A/78/520 (10 October 2023) 386
- Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, UN Doc A/69/397 (23 September 2014) 387
- UN Human Rights Council Resolution on New and Emerging Digital Technologies and Human Rights, UN Doc A/HRC/RES/53/29 (14 July 2023) 387
- UN Human Rights Council Resolution on the Right to Privacy in the Digital Age, UN Doc A/HRC/RES/54/21 (12 October 2023) 388
- Report of the Office of the United Nations High Commissioner for Human Rights, ‘The practical application of the Guiding Principles on Business and Human Rights to the activities of technology companies’, UN Doc A/HRC/50/56 (21 April 2022) 389
- Report of the Office of the United Nations High Commissioner for Human Rights, The right to privacy in the digital age, UN Doc A/HRC/51/17 (4 August 2022) 389
- Report of the Special Rapporteur on the Promotion and Protection of Human Rights while Counter-Terrorism, Human Rights Implications of the Development, Use, Transfer of New Technologies in the Context of Counter-Terrorism and Countering and Preventing... 390
- Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and Association, ‘Protection of human rights in the context of peaceful protests during crisis situations’, UN Doc A/HRC/50/42 (16 May 2022) 391
- Concluding Observations on the Eighth Periodic Report of Colombia, UN Doc CCPR/C/COL/CO/8 (21 July 2023) 392
- Concluding Observations on the Eighth Periodic Report of the Russian Federation, Human Rights Committee, UN Doc CCPR/C/RUS/CO/8 (1 November 2022) 392
- Concluding Observations on the Fifth Periodic Report of Ireland, Human Rights Committee, UN Doc CCPR/C/IRL/CO/5 (22 July 2022) 392
- Concluding Observations on the Fifth Periodic Report of the Philippines, Human Rights Committee, UN Doc CCPR/C/PHL/CO/5 (28 October 2022) 393
- Concluding Observations on the Fifth Periodic Report of the Republic of Korea, Human Rights Committee, UN Doc CCPR/C/KOR/CO/5 (30 October 2023) 393
- Concluding Observations on the Fifth Periodic Report of the United States of America, Human Rights Committee, UN Doc CCPR/C/USA/CO/5 (30 October 2023) 393
- Concluding Observations on the Fourth Periodic Report of Hong Kong, China, Human Rights Committee, UN Doc CCPR/C/CHN-HKG/CO/4 (22 July 2022) 393
- Concluding Observations on the Fourth Periodic Report of Nicaragua, Human Rights Committee, UN Doc CCPR/C/NIC/CO/4 (31 October 2022) 393
- Concluding Observations on the Fourth Periodic Report of the Islamic Republic of Iran, Human Rights Committee, UN Doc CCPR/C/IRN/CO/4 (26 October 2023) 393
- Concluding Observations on the Initial Report of the State of Palestine, UN Doc CCPR/C/PSE/CO/1 (21 July 2023) 393
- Concluding Observations on the Second Periodic Report of Lesotho, UN Doc CCPR/C/LSO/CO/2 (21 July 2023) 394
- Concluding Observations on the Seventh Periodic Report of Japan, Human Rights Committee, UN Doc CCPR/C/JPN/CO/7 (28 October 2022) 394
