[governance] Surveillance paragraph of netmundial document

Thu Apr 17 11:05:46 EDT 2014

Thank you, Ian.

We must keep pushing for the principles. They are a guiding principles
that explain to States how to implement their international human rights
obligations in the context of communication surveillance. The Principles
are firmly rooted in international law and jurisprudence.
EFF and Article 19 will be releasing next week the Legal Background and
Analysis of where the language of the Principles are coming from.

We need a country that take the lead in implementing the Principles into
national law, and that needs to come from the Parliament
There is a lack of trust in the Executive Power within the mass
surveillance debate. I don't think we will get much from a
multi-stakeholder dialogue where even the Executive Power has no real
knowledge of the scope and scale of mass surveillance. WE also hope the
litigation advance, and we hope to see more judges applying those
principles in the jurisprudence or more concluding observations from the
Human rights Committee applying them (whether they cited or they barrow
the language, which is also good to my eyes).

Brazil and Germany are two States that are our last hope to get them to
do something useful and meaningful. NetMundial as minimum need a firm
rejection that mass surveillance is inherently a disproportionate measure.

Mass surveillance, is the indiscriminate collection and retention of
communications and metadata without any form of targeting or reasonable
suspicion.

By its very nature, mass surveillance does not involve any form of
targeting or selection,  let alone any requirement on the authorities to
show reasonable suspicion or probable cause. Accordingly, mass
surveillance is inevitably disproportionate as a matter of simple
definition. The Principles reflect the above international standards
under the headings “necessity,” “adequacy,” "legitimate aim" and
“proportionality.”

People have begun to realise that the current laws of their own country
provide only ineffective protection against mass surveillance and the
laws of other countries provide them with no protection at all. The
world is waking up to the reality that most governments treat the
private communications of non-residents and foreign nationals as fair
game. The UN Human Rights Committee has for the first time remonstrated
the US government for failing to provide extra-territorial protection
for the privacy of non-citizens and legal challenges are being brought
against bulk surveillance of foreign communications around the world.

And definitely, the extraterritorial application of human rights law in
the context of national security is an internet governance issue.

Given the extraordinary capabilities and programs of States (and a few
states more than others) to monitor global communications, the right to
privacy must apply to the communication the NSA scans or collect. To
accept otherwise, it defeat the purpose and objective of the ICCPR.

You can read in EFF and Human rights Watch Submission to the Human
Rights Committee,
https://www.eff.org/document/eff-and-human-rights-watch-joint-submission-human-rights-committee

and our joint submission with Privacy International, APC, Human rights
Watch and others ot hte Office of the High commissioner on Human Rights
https://www.eff.org/document/ohchr-consultation-connection-general-assembly-resolution-68167-right-privacy-digital-age

While this is an internet governance issue too, I don't think we will
solve this problem via a multi-stakeholder dialogue, though we should
keep open the channel of communications with States and try to get some
States to actually take the lead taking strong steps against the mass
collection of data of innocent individuals, while we keep litigating in
courts at national level or internationally on this issue.

Katitza

You can barrow some languages from the submissions we have made in both
Human Rights Committee and the next report of the Office of the High
Commissioner on Human Rights.

But this issue is not only a matter of domestic law. As we seen,

On 04/16/2014 06:38 PM, Ian Peter wrote:
> Hi everyone,
>  
> To me one of the weakest sections of the document is the paragraph
> dealing with surveillance issues (para 35 of the Roadmap) which reads
> “ Internet surveillance – Mass and arbitrary surveillance undermines
> trust in the Internet and trust in the Internet governance ecosystem.
> Surveillance of communications, their interception, and the collection
> of personal data, including mass surveillance, interception and
> collection should be conducted in accordance with states’ obligations
> under international human rights law. More dialogue is needed on this
> topic at the international level using forums like IGF and the Human
> Rights Council aiming to develop a common understanding on all the
> related aspects”.
>  
> This fairly weak language and action line (more dialogue) is not
> surprising given the governmental input (including US Government) into
> the drafting. So far the only comment on this is from me, where I
> suggest  reference to the necessaryandproportionate.org principles.
>  
> I think it would be useful if others commented as individuals. Perhaps
> what we need is some better wording (which perhaps governments would be
> embarrassed not to include), and which would strengthen the response
> here. In any case, some wording and indication of level of concern to
> ensure that this is discussed on the floor of the meeting rather than
> simply passed by as an adequate wording would be useful!
>  
>  
> Ian Peter
>  
> The site for entering responses is
> http://document.netmundial.br/2-roadmap-for-the-future-evolution-of-the-internet-governance/

-- 
Katitza Rodriguez
International Rights Director
Electronic Frontier Foundation

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