Time to force government to protect citizens' privacy

IN Media Freedom | 11/02/2014

Although the Time magazine chose Pope Francis to be the Person of the Year for 2013, many felt Edward Snowden deserved that honour.  The revelations by Snowden made privacy and surveillance the centre of political discourses in 2013.

Snowden's revelations have shown the massive scale of surveillance of communications from telephone calls to metadata to emails, chat messages and search history.  In India, the plan of the Government to roll out surveillance systems like NETRA could put citizens at risk of mass surveillance without adequate procedural safeguards.  This pervasive surveillance is a violation of the right to privacy of individuals as set out under Article 12 of the Universal Declaration of Human Rights and article 17 of the International Covenant on Civil and Political Rights.

Snowden’s revelations resulted in the United Nations General Assembly adopting the resolution on the right to privacy in the digital age.

This UN resolution called upon all states to respect and protect the right to privacy, including in the context of digital communication.  For this resolution to achieve any substantive result people across the world have to unite and raise their voice against unbridled mass surveillance unleashed by nations.  Civil society as well as privacy and technology experts have already drafted International Principles on the Application of Human Rights to Communications  Surveillance.

There is a pressing need for a collective action to put an end to the government abuse of the systems of surveillance that have imposed the procedures of totalitarianism on everyone in the world in the name of security.  We have to force our own national Governments to protect the privacy rights of citizens and put in place safeguards to prevent mass surveillance, to earn our digital lives back !

Civil society organisations and people across the world are uniting to observe February 11, 2014 as the “Day We Fight Back”.  We believe that together we can force the Governments to respect and protect the right to privacy of people across the world. People across the world can make a difference by raising their voice against mass surveillance and also by educating themselves and others on using secure communications. 

Tools like the TOR network and encryption can make communications secure or at least make the job of intelligence agencies, who want to track every digital communication, that much more difficult.

Here is a summary of the 13 International Principles on the Application of Human Rights to Communication Surveillance – also referred to as the Necessary and Proportionate Principles.

Legality: Any limitation on the right to privacy must be prescribed by law. 

Legitimate Aim: Laws should only permit communications surveillance by specified State authorities to achieve a legitimate aim that corresponds to a predominantly important legal interest that is necessary in a democratic society. 

Necessity: Laws permitting communications surveillance by the State must limit surveillance to that which is strictly and demonstrably necessary to achieve a legitimate aim.

Adequacy: Any instance of communications surveillance authorised by law must be appropriate to fulfill the specific legitimate aim identified. 

Proportionality: Decisions about communications surveillance must be made by weighing the benefit sought to be achieved against the harm that would be caused to users' rights and to other competing interests. 

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

Due process: States must respect and guarantee individuals' human rights by ensuring that lawful procedures that govern any interference with human rights are properly enumerated in law, consistently practiced, and available to the general public.

User notification: Individuals should be notified of a decision authorising communications surveillance with enough time and information to enable them to appeal the decision, and should have access to the materials presented in support of the application for authorization.

Transparency: States should be transparent about the use and scope of communications surveillance techniques and powers.

Public oversight: States should establish independent oversight mechanisms to ensure transparency and accountability of communications surveillance.

Integrity of communications and systems: States should not compel service providers, or hardware or software vendors to build surveillance or monitoring capabilities into their systems, or to collect or retain information.

Safeguards for international cooperation: Mutual Legal Assistance Treaties (MLATs) entered into by States should ensure that, where the laws of more than one State could apply to communications surveillance, the available standard with the higher level of protection for users should apply.

Safeguards against illegitimate access: States should enact legislation criminalising illegal communications surveillance by public and private actors. 

(SFLC.IN is a legal services organisation that  brings together lawyers, policy analysts, technologists, and students to protect freedom in the digital world.  For more information on its activities for "The Day We Fight Back", visit http://sflc.in/events/event/the-day-we-fight-back/)