Annual report of the UN Special Rapporteur on Freedom of Expression focuses on Digital Freedom

The UN Special Rapporteur on the right to freedom of expression, Frank La Rue, has released a report which focuses on the link between online freedom and the freedom of speech. PEN’s Declaration on Digital Freedom has highlighted the same issues which Mr. La Rue describes as critical.

Many of the threats to individual expression stem from the increasing restrictions on anonymity online; these limits can have a “chilling effect, dissuading the free expression of information and ideas”. Several countries require users to register their name and details when using internet cafes, or buying mobile SIM cards, emphasising to all users that their actions are being monitored. In particular it makes it increasingly difficult for dissidents to retain anonymity from the governments they criticise. The report recommends that states should refrain from compelling identification as a precondition to access. PEN International shares these concerns; as part of our focus on digital freedom, we hope to give writers access to digital security tools, empowering them to protect their privacy online even in countries with intrusive surveillance regimes.

Aside from these overt restrictions on privacy, more clandestine internet surveillance by governments has so little judicial oversight or accountability that there is no check on States’ power. This can be dangerous for online writers, particularly journalists. In several countries governments can ‘self-authorise’ surveillance without the need for law enforcement authorities to establish the factual basis for suspicion, or a judge to assess whether the measures are proportionate. The report notes that there is a global tendency for governments to legislate for wide and arbitrary surveillance powers. Especially in light of the recent NSA revelations in the US, there is a need to consider how legal (or semi-legal) surveillance measures can be combatted – clearly, there needs to be an international move towards greater protection to the individual and more limited, less arbitrary powers for governments.

As privacy is a human right, it should be subject to the same permissible limitations test as other non-absolute rights. Any interference with a person’s privacy should be proportionate, provided for by the law, and necessary in a democratic society. Vague ‘national security’ exceptions are unlikely to meet these standards of proportionality. Mr. La Rue notes that he is not the first to bring attention to this; for example, the Special Rapporteur on protecting human rights while countering terrorism has urged governments to articulate how any surveillance undertaken is proportionate and necessary.

The adoption by several States of laws permitting extra-territorial surveillance – as conducted by the PRISM programme – “raises serious concern with regard to the extra-territorial commission of human rights violations”. He recommends that States enact Mutual Legal Assistance Treaties to regulate access to communications data held by foreign corporate actors.

Even more worryingly, many States have adopted extra-legal surveillance techniques (offensive intrusion software such as Trojans – spyware – or mass interception capabilities), and often do not acknowledge the use of such technologies.

The Rapporteur emphasises the need for greater State transparency about the use and scope of communications surveillance; at the very least, that they should publish information on the number of surveillance requests made, approved and rejected, and for what purpose. State surveillance should occur only under the most exceptional circumstances and under the supervision of an independent judicial authority. Illegal surveillance should be criminalised.

The report also assesses the role of the private sector in infringing internet users’ privacy and freedoms. Since the 1990s, States have adopted requirements for service providers to enable State intrusion; increasingly, States require them to allow the government direct access to data. States have also found ways to use private intermediaries to police online content; for example, by passing laws which make the company liable for hosting any ‘banned’ content, causing the companies to implement their own censorship controls.

In some circumstances, private companies have been complicit in contravening legal standards through enabling the surveillance of individuals. Surveillance technology is a global industry which is “virtually unregulated”; the report warns that measures need to be taken to prevent the further commercialization of surveillance technologies. While there is, of course, a black market trade in ‘digital arms’, a large amount of such technologies are developed and sold legally by companies around the world. There is essentially no oversight or restrictions on the sale of advanced surveillance technologies to repressive regimes, despite the clear human rights implications of these transactions.

The report states that, “Privacy and freedom of expression are interlinked and mutually dependent.” PEN International strongly agree and welcome the Rapporteur’s clear condemnation of excessive government surveillance and censorship online.

Access resources for privacy and anonymity online here.