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:
Competent Judicial Authority
Integrity of Communications and Systems
Safeguards for International Cooperation
Safeguards Against Illegitimate Access and Right to Effective Remedy
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.
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.
Communications surveillance should only be permitted in pursuit of the most important state objectives.
Country Surveillance Reports
- Argentina, Flavia Fascendini and María Florencia Roveri, Nodo TAU: Your Software is My Biology: The Mass Surveillance System in Argentina
- Australia, Andrew Garton: Internet the Panopticon: Exhibition and Surveillance
- Brazil, Veridiana Alimonti, Brazilian Institute for Consumer Defense, Marco Civil: A Brazilian Reaction to Surveillance on the Internet
- Canada, Stéphane Couture & Catherine Pappas, Alternatives: Surveillance and Metadata Collection in Canada
- Mexico, Luis Fernando Garcia, Red en Defensa de los Derechos Digitales: The “Metadata Debate”: A Latin American Perspective
- Netherlands, Door Hans de Zwart, Bits of Freedom: De 13 Principes: Naar een Wereld Zonder Massale Surveillance
- Pakistan, Furhan Hussain and Gul Bukhari, Bytes for All: Pakistan Dominates the Surveillance Hall of Shame
- South Africa, Jane Duncan, Department of Journalism, Film and Television, University of Johannesburg: Communications Surveillance in South Africa: The Case of the Sunday Times Newspaper
- South Korea,
- Censorship and Digital Surveillance in Turkey Country Alternative Informatics Association:
- United States, Cindy Cohn, Electronic Frontier Foundation: Secret Law is Not Law
- United States, Josh Levy, Access: The Legacy and Legality of 12333
Thematic Articles - Setting the Scene
- Article 19 and Electronic Frontier Foundation: Background and Supporting International Legal Analysis of the 13 Necessary and Proportionate Principles [Spanish version] [Portuguese version] [English version]
- Edwin Huizing Hivos and Anriette Esterhuysen, APC: Global Information Society Watch on Communication Surveillance & 13 Principles
- Gus Hosein, Privacy International: Communication Surveillance in the Digital Age
- Katitza Rodriguez, Electronic Frontier Foundation: A Principled Fight Against Surveillance
- Roxana Bassi, APC: Global Information Society Watch, Country Surveillance Report - Slaying the Monster
- Center for Democracy and Technology: International Law and Secret Surveillance: State Monitoring of Telephone and Internet Activity
- Alberto Cerda, Derechos Digitales: The Myth of Global Online Surveillance Exempted From Compliance With Human Rights
- Morgan Hargrave, Witness: Metadata is Powerful, and the NSA Knows It
- LEAP Encryption Access Project
- Jillian York, Electronic Frontier Foundation: The Harms Of Surveillance To Privacy, Expression And Association
- Alex Comninos and Gareth Seneque, Justus-Liebig University Giessen and Geist Consulting: Cyber security, Civil Society and Vulnerability in an Age of Communications Surveillance
- Elonnai Hickok, Center for Internet and Society - India: Intermediary Liability And State Surveillance
Day 2: Necessity, Adequacy, Proportionality
The State has the obligation to prove that its communications surveillance activities are necessary to achieving a legitimate objective.
A communications surveillance mechanism must be effective in achieving its legitimate objective.
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.
- Australia, Angela Daly & Angus Murray, Electronic Frontiers Australia: Fighting Surveillance Law in Australia
- Europe, Raegan MacDonald, Access: Blanket Data Retention: Law Enforcement Wants it, But They Don’t Need It
- India, Software Freedom Law Center: India’s Surveillance State – SFLC Report On Communications Surveillance in India
- New Zealand, Joy Liddicoat, Association for Progressive Communications and Tech Liberty: Eyes on New Zealand
- Nigeria, John Dada and Teresa Tafida, Fantsuam Foundation: Online surveillance ~ Public concerns ignored in Nigeria
- Romania, Rozália Klára Bakó, StrawberryNet Foundation and Sapientia Hungarian University of Transylvania: Back to the Digital Cage
- Slovak Republic, Martin Husovec and Lubomir Lukic, European Information Society Institute (EISi): The Quest for Privacy in Slovakia: The Case of Data Retention
- United States, Hanni Fakhoury, Electronic Frontier Foundation: Location Privacy is a Human Right
- United States, Amie Stepanovich, Drew Mitnick and Kayla Robinson, Access: The Necessary and Proportionate Principles and the US Government
- Uruguay, Fabrizio Scrollini, DATA: Penumbra: Surveillance, Security and Public Information in Uruguay
- Taiwan, 何明諠, Ho Ming-Syuan, Taiwan Association for Human Rights：淺論比例原則：政府隱私監控的準則 - A Brief Talk about Principle of Proportionality
Day 3: Due Process, Competent Judical Authority, User Notification, Transparency and Public Oversight
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.
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.
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.
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.
- Australia, Roger Clarke, Xamax: Data Retention as Mass Surveillance – An Australian Perspective
- Colombia, Katitza Rodriguez, Electronic Frontier Foundation y Pilar Saenz, Fundacion Karisma: ¡Que No Te Chuzen el Correo, Tu Privacidad Es Primero!
- Europe, Joe McNamee, European Digital Rights: Public Oversight and The Rule of Law
- Hungary, Éva Tormássy: Data Retention And The Use Of Spy Software In Hungary
- Poland, Katarzyna Szymielewicz and Anna Walkowiak, Panoptykon Foundation: Access to Telecommunication Data in Poland: Specific Problems and General Conclusions
- Peru, Fabiola Gutiérrez and Jorge Bossio, Red Científica Peruana and Universidad Peruana de Ciencias Aplicadas: Rights Versus Crime: Twenty Years of Wiretapping And Digital Surveillance in Peru
- Serbia, Milos Stojkovic and Djordje Krivokapic, SHARE Foundation-SHARE Defense: Access to Retained Data In Serbia
- Senegal, Ababacar Diop, JONCTION: Communications Surveillance in the Senegalese Digital Society
- Taiwan, Taiwan Association for Human Rights
- When Elephants Fight: Communications Surveillance On The Rise in Thailand Mishari Muqbil and Arthit Suriyawongkul, Thai Netizen Network:
- International, Peter Micek, Access: Spotlighting Surveillance: Where States Can Lead on Transparency Reporting
- International, Yana Welinder and Stephen LaPorte, Wikimedia Foundation: Wikipedia Is Built On Transparency
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.
- Mexico, Cédric Laurant and Monserrat Laguna Osorio, SonTusDatos: The FinFisher Case in Mexico
- Germany, Internet Society German Chapter: 30 Jahre nach 1984
- Netherlands, Mijn vriend $#236dsdfiulgsd^%&@ (
- Taiwan, Taiwan Association for Human Rights: .
- United Kingdom, Privacy International: Five Eyes’ Quest For Security Has Given Us Widespread Insecurity
- United Kingdom, Javier Ruiz Diaz, Open Rights Group: GCHQ: The NSA’s Little Brother... Not So Little Anymore
- United States, Seth Schoen, Electronic Frontier Foundation: Legal Struggles Over Interception Rules in the United States
- United States, Mayukh Sen, National Coalition Against Censorship: A Machine of Paranoia: How Concerns for Student Safety May Chill Speech
- International, Courage Foundation: Courage Joins ‘Necessary and Proportionate Principles’ Week.
- International, Amie Stepanovich, Access:
- International, Danny O'brien, Electronic Frontier Foundation: Human Rights Require a Secure Internet
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.
- Australia, Angela Daly, Angus Murray, Electronic Frontiers Australia, While Australia shirks Its International Obligations, Australians Wait On The Rest of The World To Act
- Canada, Carmen Cheung, British Columbia Civil Liberties Association: 13 Necessary and Proportionate Principles: The View from Canada
- Taiwan, Taiwan Association for Human Rights, 莊庭瑞（Tyng-Ruey Chuang）：國家監視行為在台灣：我們不了解的現況 ~ State Surveillance in Taiwan: The Current Status We Don't Know
- International, Carly Nyst, Privacy International: Unmasking the Five Eyes’ Global Surveillance Practices