[bestbits] Surveillance paragraph of netmundial document

Thu Apr 17 11:22:59 EDT 2014

Hi Anne,

I'm not aware of who are members of the drafting committee (apologize
for not being able to follow the process closely) but those going to
Brbzil can work with some States probably from developing countries
(lead by Brazil) to get a strong statement condemning mass surveillance.
I'm not sure if that is feasible  but that would contribute to this
global debate.

Below are some talking points from our joint submission with Privacy
International, APC, Human Rights Watch, Article 19, Web We Want
Foundation and others on this topic that might also be relevant if we
want to get some states on board condemning mass surveillance:
https://www.eff.org/document/ohchr-consultation-connection-general-assembly-resolution-68167-right-privacy-digital-age

a. Mass surveillance is inherently disproportionate – Mass surveillance
operations enable the scooping up of communications pertaining to
individuals on the basis of location, nationality, or communications
services used, rather than on the basis of individualised suspicion or
the detection or prevention of a particular offence. The fundamental
premise of this communications (signals) intelligence gathering is the
collation of excessive amounts of information from which patterns or
correlations might be drawn, rather than the pursuit or investigation of
particular activities. Such a scope is necessarily so broad as to
obliterate any precision or targeted calculation of the individual
impacts of measures.

b. Mass surveillance is also inherently disproportionate regardless of
technical or procedural safeguards – It is difficult to imagine what
safeguards would need to be put in place to prevent against abuse of a
system that enables the mass collection and storage of intimate and
sensitive information on whole populations. The very quantity and nature
of the information being collected renders such a system inherently
unsafe. Even if judicial authorization were to be required for each act
of mass surveillance – which, in most countries, it is not – and such
surveillance could be independently audited, the very collection of such
valuable information in itself raises huge issues of safety and security
that would be extremely difficult to overcome with legal safeguards.  In
addition, the “minimisation” procedures used by States such as the US,
which they claim safeguard the communications of certain categories of
persons, are shrouded in secrecy.

c. Mass surveillance interferes with virtually all aspects of our
everyday lives – Given that almost all activities – communication
between individuals, financial transactions, accessing health care
services, to name just a few – are now conducted online, via computers
or on mobile phones, and thus subject to mass collection techniques such
as tapping into the undersea cables or at Internet switches, mass
surveillance interferes with any and all activities, even those of an
extremely sensitive nature.

d. No compelling evidence has ever been put forward to justify the need
for mass surveillance – While the protection of national security and
the prevention of crime and disorder are undoubtedly pressing social
needs, it is difficult to assess the severity of those needs –
particularly under the umbrella of national security – given the aura of
secrecy accorded to surveillance in the context of national security and
terrorism-related measures. It is impossible for the public to know or
assess the pressing nature of the need without greater transparency and
accountability by governments about the usefulness of surveillance
measures in actually addressing national security and terrorism concerns.

e. Mass surveillance has a correlative chilling effect on freedom of
expression and freedom of association – The destructive impact of mass
surveillance on general well-being cannot be underestimated. These
impacts include not only the violation of privacy rights, but extend to
broader societal impacts on the ability to freely form and express ideas
and opinions, to associate and organise, and to disagree with dominant
political ideologies and demand change to the status quo. It is
well-accepted that people are much less likely to express themselves and
share information if they know or suspect that the government is
monitoring their interactions with others. By undermining people’s
confidence in the privacy and security of their online communications,
mass surveillance seriously impedes the free flow of information and
ideas online. Mass surveillance chills not only free speech, but
innovation, creation and imagination. As the UN Special Rapporteur on
Freedom of Expression concluded in his report of 17 April 2013, States
cannot ensure that individuals are able to freely seek and receive
information or express themselves without respecting, protecting and
promoting their right to privacy. 1 The UN Special Rapporteur also
warned that without strong legal protections in place, journalists,
human rights defenders, political activists and whistleblowers risk
being subjected to arbitrary surveillance activities. 2 The European
Court of Human Rights recognized as much in Segerstedt-Wiberg and Others
v Sweden (no. 62332/00, 6 June 2006, paras. 107), where it found that
the Swedish government’s collection and storage of personal data related
to political opinion, affiliations and activities was an unjustified
interference with the rights to freedom of expression and association.

On 04/17/2014 08:56 AM, Anne Jellema wrote:
> I think we should get back to Ian's good suggestion of developing some
> alternative text, which we can submit via the comment box, but also use
> in lobbying.
> Here is a rough stab - would be great if the human rights experts among
> us could develop further.
> (By the way, Carl Bildt's 7 principles closely mirror 8 of the 13
> 'necessary and proportionate' principles developed by civil society, and
> he explicitly mentions 'necessity' and 'proportionality'.)
> best
> Anne
> Surveillance of communications, their interception, and the collection
> of personal data, including mass surveillance, interception and
> collection should be conducted only when necessary and proportionate,
> and in accordance with states’ territorial and extraterritorial
> obligations to respect, fulfil and protect the right to privacy under
> international human rights law. The private sector bears equal
> responsibility for respecting internet users' right to privacy.
> 
> 
> On Thu, Apr 17, 2014 at 2:02 PM, Mawaki Chango <kichango at gmail.com
> <mailto:kichango at gmail.com>> wrote:
> 
>     I don't know whether that would make it an IG issue or not, but I
>     think it still is legitimate and even maybe strategically necessary
>     for civil society engaged in IG, to the extent they are concerned
>     with a policy problem that is enabled by the internet and can be
>     constrained by internet policy, to discuss and develop proposals in
>     IG space in order to help address that problem in its proper space.
>     Unless the problem space (here national security law) offers the
>     same opportunity for CS to prepare and provide inputs. 
> 
>     It's just a practical and opportunity problem. Of course everybody
>     in the IG space does not have to be involved in that discussion.
>     Thanks
> 
> 
>     On Thu, Apr 17, 2014 at 10:52 AM, Nick Ashton-Hart
>     <nashton at consensus.pro <mailto:nashton at consensus.pro>> wrote:
> 
>         I would say that if we try and make everything an Internet
>         Governance issue, we will be unable to agree on anything. There
>         are better fora to discuss many subjects than IG - aside from
>         anything else, in other fora the results are binding, where in
>         IG they are not.
> 
>         I would suggest that anything that relates to the data that the
>         network carries is not IG, and anything that relates to the
>         network and not the data IS IG as a rough-and-ready rule.
> 
>         Just because something has a digital dimension doesn’t mean it
>         is in scope for IG.
> 
>         On 17 Apr 2014, at 12:42, Lorena Jaume-Palasí
>         <lorena at collaboratory.de <mailto:lorena at collaboratory.de>> wrote:
> 
>>         indeed, it is a national security-law problem and as you
>>         stated, Nick, it has a digital dimension. Issues with a
>>         digital dimension and about regulation are not in the focus of
>>         internet governance? I do think that this is an internet
>>         governance issue -however not exclusively since it affects
>>         other political dimensions too.
>>         Kind regards,
>>         Lorena
>>
>>         Am 17.04.2014 12:31, schrieb 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.
> 
> 
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> 
> 
> 
> -- 
> Anne Jellema 
> CEO  
> +27 061 36 9352 (ZA) 
> +1 202 684 6885 (US)
> @afjellema 
> *
> *
> *World Wide Web Foundation | 1110 Vermont Ave NW, Suite 500, Washington
> DC, 20005, USA | www.webfoundation.org <http://www.webfoundation.org/> |
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> 

-- 
Katitza Rodriguez
International Rights Director
Electronic Frontier Foundation

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