Is Surveillance a freedom of expression issue?

As the controversy over the revelations regarding the NSA surveillance programs continues, with feverish speculation over the current whereabouts and eventual destination of whistle-blower Edward Snowden, two international human rights experts have published an important declaration regarding the principles of international human rights law which underpin the various aspects of this case, relating to the interplay between national security, privacy, the free flow of information and protection from reprisals for disclosing material deemed confidential by the state.

Frank LaRue, the Special Rapporteur for Freedom of Expression at the United Nations, and Catalina Botero, the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights issued their Joint Declaration on surveillance programs and their impact on freedom of expression because “the information available on the scope of these programs highlights the risks their implementation poses to the right to privacy and freedom of expression, as well as the need to amend the corresponding legislation and establish improved mechanisms for transparency and public debate on these practices”.

Many of the legal points they refer to are reflected in PEN International’s Declaration on Digital Freedom approved in 2012 at the PEN International Congress in Gyeongju, Korea. PEN International – a global writers’ organization – promotes literature and freedom of expression and is governed by the PEN Charter and the principles it embodies—unhampered transmission of thought within each nation and between all nations. PEN recognizes the promise of digital media as a means of fulfilling the fundamental right of free expression. At the same time, poets, playwrights, essayists, novelists, writers, bloggers, and journalists are suffering violations of their right to freedom of expression for using digital media. Citizens in many countries have faced severe restrictions in their access to and use of digital media, while governments have exploited digital technologies to suppress freedom of expression and to surveil individuals. The private sector and in particular technology companies have at times facilitated government censorship and surveillance.

Governments around the world engaging in internet surveillance – and we know that the USA is not alone in doing so ( a recent survey by the University of Toronto found evidence of FinFisher’s surveillance software in a total of 25 countries) – would do well to look at both declarations and remind themselves of their international obligations. And individuals across the world should take action to hold their governments accountable. We are witnessing a decline in investigative journalism and more and more frequently it is whistleblowers who are providing us with information about where our governments are falling short. As Frank la Rue and Catalina Botero said:

“[A] person with a connection to the state who, having a legal obligation to keep certain information confidential, only discloses to the public information that she reasonably believe to prove the commission of human rights violations (“whistleblowers”) shall not be subjected to legal, administrative or disciplinary sanctions as long as that person has acted in good faith, pursuant to international standards on the subject.”
The internet so far has served to connect people across national borders – an important part of PEN’s charter. Governments unchecked are likely to do all they can to raise virtual borders by stealth or other means. We should all be vigilant.

Ann Harrison
Program Director
Writers in Prison Committee