[bestbits] Surveillance paragraph of netmundial document

[Nick Ashton-Hart]

I think the key issue here is: how do countries treat non-nationals in pursuit of their national security and law enforcement activities.

This is not actually an ‘Internet problem’ or an Internet governance issue to my mind, it is a surveillance problem that affects the Internet because the Internet is the tool being used.

On 17 Apr 2014, at 12:09, Lorena Jaume-Palasí <lorena at collaboratory.de> wrote:

> Hmm, no word on extraterritoriality there... and since the nation states have to apply the principles towards their own citizens, within their own national borders and since national intelligence agencies goals and infractions affect third parties, the legal hole remains...
> From the enforcement point of view, this is going to be a tough cookie. It makes more sense (but would take longer) to think about international standards and limits on cyber-spionage.
> Kind regards,
> Lorena
> 
> QUOTE FROM PATRIK
>> 
>>  
>> Although I can understand the interest for more detailed language, and support us trying to get that, it is already known that States that have signed up to the Human Rights Treaty can not sign up to the
>> necessaryandproportionate.org principles, so such negotiations will fail. A counter proposal has been released by the Swedish Foreign Minister Carl Bildt that reads:
>>  
>> <http://www.regeringen.se/sb/d/17280/a/226590>
>>  
>> To this objective, let me propose seven principles I believe should be observed.
>>  
>> 1. First, legality.
>>  
>> Surveillance needs to be based on laws.
>>  
>> These laws must be adopted in a transparent manner through a democratic process.
>>  
>> The implementation of these laws should be reviewed periodically to ensure that the expansion of surveillance capabilities due to, for instance, technological advances is properly debated.
>>  
>> 2. Second, legitimate aim.
>>  
>> Surveillance must be conducted on the basis of a legitimate and well-defined aim.
>>  
>> Surveillance measures may never be carried out in a discriminatory or discretionary manner and only by specified state authorities.
>>  
>> 3. Third, necessity and adequacy.
>>  
>> The law should justify that surveillance is necessary and adequate to achieve the legitimate aim.
>>  
>> 4. Fourth, proportionality.
>>  
>> A sound proportionality judgment must be made, to carefully assess whether the benefits of surveillance outweigh its negative consequences.
>>  
>> 5. Fifth, judicial authority.
>>  
>> Decisions on the use of communications surveillance should be taken by a competent authority.
>>  
>> As a general rule, an independent court should take such decisions.
>>  
>> 6. Sixth, transparency.
>>  
>> States should be as transparent as possible about how they carry out surveillance.
>>  
>> They should provide information on how the surveillance legislation works in practice.
>>  
>> 7. Seventh, public oversight of parliamentary or other credible institutions.
>>  
>> We need to scrutinise how the laws work, to create transparency and build trust and legitimacy.
>>  
>> Our obligation as governments is to provide security and to respect human rights - not either or.
>>  
>>    Patrik
>>  
>> END QUOTE
>>  
>> 
> 
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