Internet censorship and surveillance have a direct impact on fundamental rights. Online free expression facilitates a free debate on subjects of general interest. It also facilitates development, good government and the implementation of democratic guarantees. In a resolution adopted on 5 July 2012, the UN Human Rights Council said that the rights recognized in the physical world should also be recognized online regardless of frontiers. It called on governments to “promote and facilitate access to the Internet and international cooperation aimed at the development of media and information and communications facilities in all countries.”
In practice, surveillance of communications networks continues to grow. It allows governments to identify Internet users and their contacts, to read their email and to know where they are. In authoritarian countries, this surveillance results in the arrest and mistreatment of human rights defenders, journalists, netizens and other civil society representatives. The fight for human rights has spread to the Internet, and more and more dissidents are ending up in prison after their online communications are intercepted.
At the national and regional level, at the UN level, in the European Union and in most national legislation, the legal and regulatory framework governing Internet surveillance, protection of data and the export of ICT surveillance products is incomplete and inadequate, and falls far short of international human rights standards and norms. The adoption of a legal framework that protects online freedoms is essential, both as regards the overall issue of Internet surveillance and the particular problem of firms that export surveillance products.
RWB draws attention to
- The fact that the right to privacy is enshrined internationally in the Universal Declaration of Human Rights (article 12), The International Covenant on Civil and Political Rights (article 17), the European Convention on Human Rights (article 8) and the American Convention on Human Rights (article 11).
- The report on surveillance by the UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Frank La Rue, highlighting the impact of surveillance on human rights in general and freedom of information in particular.
- The 13 International Principles on the Application of Human Rights to Communications Surveillance, which were developed by Access, EFF and Privacy International with the help of a group of international experts. They aim to provide civil society, private enterprise and states with a framework for determining whether surveillance laws and practices respect human rights. These principles have received the support of more than 360 NGOs in 70 countries and can be signed and supported on the thedaywefightback website.
The United Nations
- To consider creating a working group on digital freedoms, attached to the UN Human Rights Council, with the job of gathering all relevant information on digital freedoms, Internet surveillance, protection of privacy online, digital censorship, other forms of infringement of digital freedom in member states and individual cases of digital freedom violations, and making recommendations to member states.
The European Union
- To include unrestricted Internet access and to guarantee digital freedoms in the EU’s Charter of Fundamental Rights.
- To incorporate the promotion and protection of digital freedom in all of the EU’s external actions, policies and funding instruments, including both development and assistance programmes and Free Trade Agreement negotiations. And to condition development aid on respect for digital freedoms.
- To insist on the importance of freedom of Internet access and digital freedoms in the EU accession criteria (Copenhagen Criteria), and to reinforce monitoring of respect for these criteria.
- In relations between EU member states and with other countries, and in international bodies such as the WTO, to treat Internet surveillance mechanisms as protectionist and as barriers to trade and exchanges, and to combat them as such.
- To treat unrestricted Internet access and other digital freedoms as fundamental rights.
- To adopt laws guaranteeing digital freedoms, including the protection of privacy and personal data against intrusions by law enforcement and intelligence agencies, and to establish appropriate mechanisms of legal recourse.
- To ensure that communications surveillance measures strictly respect the principles of legality, need and proportionality, in line with article 19 of the International Covenant on Civil and Political Rights.
- To promote greater transparency as regards the surveillance requests they address to businesses, including their number, legal basis and objectives.
Business and human rights
Reporters Without Borders has repeatedly criticized the criminal level of cooperation between certain new technology companies and authoritarian regimes. These companies provide dictatorships with communications surveillance software that allows their law enforcement and intelligence agencies to spy on government opponents and dissidents and to imprison them. Worldwide, at least 167 netizens were in prison at the end of February 2014 in connection with their provision of news and information. The companies that collaborate with these governments must be penalized. Governments must enact legislation capable of controlling the export of ICT surveillance products and of penalizing the companies involved.
RWB draws attention to
- The UN Guiding Principles on Business and Human Rights, which the UN Human Rights Council approved unanimously in 2011.
- RWB’s constant advocacy with the UN and individual governments on the subject of surveillance and its many statements on the subject, including its written submission o the second UN forum on “Business and human rights” in Geneva on 2-4 December 2013.
- RWB’s November 2012 position paper on the export of European surveillance technology.
- Its many press releases and statements on this subject since the start of the 2000s, in particular, its September 2011 statement: “Companies that cooperate with dictatorships must be sanctioned.”
- The reports of various bodies such as the UN Working Group on the issue of Human Rights and Transnational Corporations, especially its report of 14 March 2013, and a 24 October 2013 report by France’s National Consultative Commission on Human Rights entitled “Business and Human Rights: an opinion on the challenges for France’s implementation of the UN Guiding Principles.”
- RWB’s participation in The Cause (Coalition Against Unlawful Surveillance Exports), an international coalition that includes Amnesty International, Human Rights Watch, Privacy International and Digitale Gesellschaft.
The United Nations
- To reinforce the mandate of the UN Working Group on the issue of Human Rights and Transnational Corporations, in particular, by giving it the ability to receive individual complaints and to investigate individual cases of alleged human rights violations involving businesses.
- To consider drafting an international convention on the human rights responsibilities of businesses that uses the UN Guiding Principles as its starting point and develops them.
- To consider drafting an international convention on the export of Internet surveillance technology in order to control these exports and the sales of other technology that endangers netizens and threatens their freedom. This convention would establish an independent monitoring body, dissuasive penalties and rules that allow the export of products to be banned when there is a significant danger of their being used to commit or facilitate grave human rights violations.
The states participating in the Wassenaar Arrangement for regulating the export of conventional weapons and dual-use goods and technologies
While welcoming the Wassenaar Arrangement’s decision to add “intrusion software” and “IP network surveillance systems” to the list of controlled dual-use goods and technologies, RWB urges participating states:
- To promote more transparency and to give civil society and national human rights institutions (NHRIs) better access to the Wassenaar Arrangement’s plenary assembly.
- To consider establishing binding regulations on the export and transfer of dual-use technologies to certain countries, regulations that would be uniformly binding on all participating states.
- To reinforces states’ obligations, especially as regards monitoring exporters’ compliance with the requirement to report exports.
The European Union
- To establish a more effective European-level mechanism for regulating surveillance technology exports.
- To treat certain systems and services used specifically for jamming, surveillance, control or interception as single-use products whose export should be subject to prior authorization.
- To harmonize and standardize the procedures and penalties used in monitoring and regulating surveillance technology.
- To control the exports of Internet surveillance products more strictly, especially their export to war zones and to states that do not respect fundamental freedoms.
- To amend current legislation and reinforce provisions for legal recourse in the following ways:
- By introducing legislative provisions on the criminal responsibility of businesses cooperating with regimes that violate human rights.
- By imposing a legal requirement on businesses to act with due diligence as regards respect for human rights.
- By ensuring that, as a result of this requirement, the state where a company has its headquarters is required to act as guarantor and to monitor the company’s compliance with its international obligations.
- By introducing legislation that combats impunity and ensures the effectiveness of national judicial mechanisms by extending the exception to the principle of corporate autonomy to include human rights, so that companies can be held responsible for the actions of subsidiaries in other countries.
- By extending the international jurisdiction of national criminal courts so that they are competent to rule on crimes that a company has committed in another country.
- To respect internationally recognized human rights.
- To adopt codes of ethical conduct and effective traceability mechanisms; and to establish mechanisms for informing personnel about human rights and increasing their awareness of human rights issues.
- To draft undertakings to respect the UN Guiding Principles and, in particular, to show due diligence as regards human rights and transparency.
- To envisage mechanisms for making reparations when their activities impact negatively on human rights.