The Principles Week of Action: A World Without Mass Surveillance


In the week leading up the first year anniversary of the 13 Necessary and Proportionate Principles, the coalition behind the Principles conducted a Week of Action explaining some of the key guiding principles for surveillance law reform. Each day of the week, we took on a different part of the principles, explored what was at stake and what we all need to do to bring intelligence agencies and the police back under the rule of law. We also featured several articles in this year Global Information Society Watch on Communication Surveillance, a ground-breaking report published by APC and Hivos. The Principles were first launched at the 24th Session of the United Nations Human Rights Council in Geneva on 20 September 2013. You can follow the discussion on twitter with the hashtag: #privacyisaright

This Year's Heroes and Villains

September 22, 2014 — As part of the first anniversary of the Necessary and Proportionate Principles, Access is pleased to announce its “Heroes and Villains of Human Rights and Communications Surveillance.” The Necessary and Proportionate Principles are intended to demonstrate how high-tech state surveillance can undermine the fundamental rights of people around the world. It sets out thirteen principles drawn from international human rights law which can protect everyone from the misuse of communications surveillance, and preserve our rights in a digital age.

Recognition is being provided both for those who have worked to advance the thirteen principles, as well as for those who have taken steps away from a human rights respecting framework.

Access was one of the original drafters of the 13 Principles, and has been joined in the last year with over 400 other organizations, and nearly 300,000 individuals who have signed the Principles at necessaryandproportionate.org/text

 

For their work in 2013-2014, the Access heroes and villains are:

Overall

Hero: Former UN High Commissioner Navi Pillay for consistently demonstrating that surveillance violates fundamental human rights.
Villain: General Keith Alexander for implementing and overseeing NSA mass surveillance programs.

Legality

Hero: Ton Siedsma for demonstrating how sensitive “just metadata” can be.
Villain: Steven Blaney, Canadian Minister of Public Safety for pushing a cyberbullying bill with broad surveillance provisions.

Legitimate Aim

Hero: Laila Al-Arian for bringing attention to the disparate impact of surveillance practices.
Villain: President Recep Tayyip Erdoğan for using political authority to block websites for personal reasons.

Necessity

Hero: Jesús Robles Maloof, Luis Fernando Garcia, and Jacobo Najera for fighting against overbroad provisions in Mexico’s Ley Telecom.
Villain: Emilio Gamboa Patrón for supporting data retention mandates and warrantless tracking.

Adequacy

Hero: Edward Snowden for revealing mass surveillance practices and starting a global conversation on digital rights.
Villain: Minister Mohamed Ibrahim Moustafa for secretly pursuing a mass surveillance plan.

Proportionality

Hero: Professor Park Kyung-sin for litigating to require notice to subscribers of law enforcement access to data.
Villain: Director James Clapper for knowingly misleading the public on bulk surveillance activities.

Competent Judicial Authority

Hero: Senator Ron Wyden for supporting reform of the secret U.S. FISA Court
Villain: The Honorable John D. Bates for lobbying against an adversarial process in the U.S. FISA Court.

Due Process

Hero: President Dilma Rousseff for openly condemning the “global network of electronic espionage.”
Villain: Abdallah-Kadre Assane for ordering the shutdown of SMS service for all of the Central African Republic.

User Notification

Hero: Ladar Levison for vocally opposing gag orders.
Villain: AT&T for willingly participating in mass surveillance programs.

Transparency

Hero: Professor Christopher Parsons for advocating for greater corporate transparency.
Villain: Secretary Jeremy Heywood for ordering the destruction of the Guardian’s hard drives.

Public Oversight

Hero: Claude Moraes, MEP for advancing stronger whistleblower protections.
Villain: Major General Pisit Paoin for initiating a plan to infiltrate internet chat groups.

Integrity of Communications and Systems

Hero: Nighat Dad for training vulnerable populations on digital security.
Villain: Minister Debretsion Gebremichael for the use of Finfisher surveillance technology.

Safeguards for International Cooperation

Hero: Reform Government Surveillance Coalition for advocating for reform of Mutual Legal Assistance Treaties.
Villain: President Vladimir Putin for signing Russia’s data localization law.

Safeguards Against Illegitimate Access and Right to Effective Remedy

Hero: Viviane Reding, MEP for supporting an EU right to judicial redress in U.S. courts.
Villain: Harold Koh for authoring the legal basis on which the U.S. disregards the rights of non-U.S. persons in its surveillance practices.

Day 1: Introduction, Protect Metadata, Legality, Legitimate Aim

CHANGING TECHNOLOGIES AND DEFINITIONS: Protected Information

It’s time to move beyond the fallacy that information about communications is not as privacy invasive as communications themselves. Information about communications, also called metadata or non-content, can include the location of your cell phone, clickstream data, and search logs, and is just as invasive as reading your email or listening to your phone calls—if not more so. What is important is not the kind of data is collected, but its effect on the privacy of the individual.

LEGALITY

Limits on the right to privacy must be set out clearly and precisely in laws, and should be regularly reviewed to make sure privacy protections keep up with rapid technological changes.

LEGITIMATE AIM

Communications surveillance should only be permitted in pursuit of the most important state objectives.

Take Action:

Sign the 13 Necessary and Proportionate Principles

Learn More:

Country Surveillance Reports

Thematic Articles - Setting the Scene

Day 2: Necessity, Adequacy, Proportionality

NECESSITY

The State has the obligation to prove that its communications surveillance activities are necessary to achieving a legitimate objective.

ADEQUACY

A communications surveillance mechanism must be effective in achieving its legitimate objective.

PROPORTIONALITY

Communications surveillance should be regarded as a highly intrusive act that interferes with the rights to privacy and freedom of opinion and expression, threatening the foundations of a democratic society. Proportionate communications surveillance will typically require prior authorization from a competent judicial authority.

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Day 3: Due Process, Competent Judical Authority, User Notification, Transparency and Public Oversight

DUE PROCESS

Due process requires that any interference with human rights is governed by lawful procedures which are publicly available and applied consistently in a fair and public hearing.

COMPETENT JUDICIAL AUTHORITY

Determinations related to communications surveillance must be made by a competent judicial authority that is impartial and independent.

USER NOTIFICATION

Individuals should be notified of a decision authorising surveillance of their communications and be provided an opportunity to challenge such surveillance before it occurs, except in certain exceptional circumstances.

TRANSPARENCY

The government has an obligation to make enough information publicly available so that the general public can understand the scope and nature of its surveillance activities. The government should not generally prevent service providers from publishing details on the scope and nature of their own surveillance-related dealings with State.

PUBLIC OVERSIGHT

States should establish independent oversight mechanisms to ensure transparency and accountability of communications surveillance. Oversight mechanisms should have the authority to access all potentially relevant information about State actions.

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Day 4: Integrity of Communications and Systems, Protection on Whistleblowers, Safeguards Against Illegitimate Access and Right to An Effective Remedy

INTEGRITY OF COMMUNICATIONS AND SYSTEMS

Service providers or hardware or software vendors should not be compelled to build surveillance capabilities or backdoors into their systems or to collect or retain particular information purely for State surveillance purposes.

PROTECTION ON WHISTLEBLOWERS

Strong protection should be afforded to whistleblowers who expose surveillance activities that threaten human rights.

SAFEGUARDS AGAINST ILLEGITIMATE ACCESS & RIGHT TO AN EFFECTIVE REMEDY

There should be civil and criminal penalties imposed on any party responsible for illegal electronic surveillance and those affected by surveillance must have access to legal mechanisms necessary for effective redress.

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Day 5: Safeguards for International Cooperation and Extraterritorial Application of Human Rights Law

SAFEGUARDS FOR INTERNATIONAL COOPERATION

On occasion, States may seek assistance from foreign service providers to conduct surveillance. This must be governed by clear and public agreements that ensure the most privacy-protective standard applicable is relied upon in each instance.

SCOPE OF APPLICATION

These principles apply to surveillance conducted within a State or extraterritorially. The principles also apply regardless of the purpose for the surveillance -- including enforcing law, protecting national security, gathering intelligence, or another governmental function. They also apply both to the State’s obligation to respect and fulfil individuals’ human rights, and also to the obligation to protect individuals’ human rights from abuse by non-State actors, including business enterprises.

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