The Right to Privacy in the Digital Age

"Deep concerns have been expressed as policies and practices that exploit the vulnerability of digital communications technologies to electronic surveillance and interception in countries across the globe have been exposed."

This document answers a request by the United Nations (UN) General Assembly to its Office of the UN High Commissioner for Human Rights (OHCHR) to report on "the protection and promotion of the right to privacy in the context of domestic and extraterritorial surveillance and/or the interception of digital communications and the collection of personal data, including on a mass scale."

"Following the expression of concerns of Member States and other stakeholders at the negative impact of these surveillance practices on human rights, in December 2013, the General Assembly adopted resolution 68/167, without a vote, on the right to privacy in the digital age. In the resolution, which was co-sponsored by 57 Member States, the Assembly affirmed that the rights held by people offline must also be protected online, and called upon all States to respect and protect the right to privacy in digital communication. It further called upon all States to review their procedures, practices and legislation related to communications surveillance, interception and collection of personal data, emphasizing the need for States to ensure the full and effective implementation of their obligations under international human rights law."

A UN University research project, November 2013-March 2014, was conducted on the application of international human rights law to national regimes overseeing governmental digital surveillance. The OHCHR surveyed member states in February to detail existing national legislative frameworks and to other measures taken to ensure respect for and protection of the right to privacy in the digital age, as well as initiatives to establish and implement procedural safeguards and effective oversight. Suggestions for international initiatives resulted and "included encouragement to the Human Rights Committee to update its relevant general comments, in particular on article 17 of the International Covenant on Civil and Political Rights; the establishment by the Human Rights Council of a special procedures mandate on the right to privacy; and/or the engagement of existing relevant special procedures mandate holders in joint or individual initiatives to address issues related to the right to privacy in the context of digital surveillance and to provide good-practice guidance."

The document analyses issues including: the right to protections, protection of the law, procedural safeguards and oversight, and the right to an effective remedy for violations. It describes the role of business, in that governments generally rely on private business to provide and monitor meta-data.

Conclusions and recommendations include the following;

• "International human rights law provides a clear and universal framework for the promotion and protection of the right to privacy, including in the context of domestic and extraterritorial surveillance, the interception of digital communications and the collection of personal data...."
• Significant gaps in implementation of the right to privacy exist in that it is ongoing and further assessment of rights and its effect on rights is needed and is in process, include in the court system. "A second and related observation concerns the disturbing lack of governmental transparency associated with surveillance policies, laws and practices, which hinders any effort to assess their coherence with international human rights law and to ensure accountability."
• "Effectively addressing the challenges related to the right to privacy in the context of modern communications technology will require an ongoing, concerted multi-stakeholder engagement. This process should include a dialogue involving all interested stakeholders, including Member States, civil society, scientific and technical communities, the business sector, academics and human rights experts. As communication technologies continue to evolve, leadership will be critical to ensuring that these technologies are used to deliver on their potential towards the improved enjoyment of the human rights enshrined in the international legal framework."
• States need to review "their own national laws, policies and practices to ensure full conformity with international human rights law. Where there are shortcomings, States should take steps to address them, including through the adoption of a clear, precise, accessible, comprehensive and non- discriminatory legislative framework...."
• "...An in-depth analysis of these issues would help to provide further practical guidance, grounded in international human rights law, on the principles of necessity, proportionality and legitimacy in relation to surveillance practices; on measures for effective, independent and impartial oversight; and on remedial measures..." and assist business entities in meeting their responsibilities of due diligence and risk management safeguards of human rights.