A/HRC/28/39
know the nationality of the sender of a digital communication. On the question of whether
control over telecommunications infrastructure could qualify as State jurisdiction for the
purposes of article 2 of the Covenant, Ms. Cleveland stated that because digital
communication transcended geography, some conception of the extraterritorial application
of human rights was necessary to ensure that human rights could be protected online as well
as offline. She noted that there were various approaches to extraterritoriality, most of which
focused on the concept of jurisdiction outside the territory as involving some form of
effective control over a person or a territory, and that under that approach, it was possible to
view the exercise of control over Internet infrastructure as the exercise of control over a
territory that had effects on the rights of individuals, wherever they might be located.
49.
It was noted that the responsibility to respect the right to privacy lay with a number
of different actors. Some delegations underscored the lack of effective oversight as having
contributed to a lack of accountability for unlawful intrusions on the right to privacy, as
well as the shortcomings of relying on internal safeguards without independent external
monitoring. The need to protect the rights of victims was underlined. One delegation noted
that it was up to each State to develop independent and effective national oversight
mechanisms, to ensure the proper application of the rules that govern electronic
surveillance. One non-governmental organisation stated that there had been cases of mass
surveillance for the purpose of arresting human rights defenders or identifying participants
at peaceful assemblies, where “rubber stamping” by the courts had been instrumental, or
where personal data collected by telecommunication companies through real-name
verification systems had been provided to intelligence and investigative agencies in the
absence of any court examination. The need for effective oversight regimes, with attention
paid to the rights of victims to an effective remedy, was stressed, including the involvement
of an independent and impartial judiciary as a key safeguard.
50.
In response to questions about procedural safeguards and oversight mechanisms to
ensure that the law was effective and applied in practice, Ms. Nyst explained that an
essential precondition to greater and more effective oversight was the end to pervasive
secrecy. Governments needed to be more transparent about the activities they needed to
engage in to provide security and they must not compromise the infrastructure in a way that
was beyond control of the public. She also noted that all individuals, particularly judges and
lawyers, should gain a better understanding of how Internet technology worked, which
would help them to better understand how surveillance worked. She underscored the
importance of ensuring that any surveillance was authorized by an independent and
competent judicial authority. She added that it was essential that individuals be notified of
the fact that they had been subject to surveillance, in order to be in a position to obtain
redress. She also noted the need for more rigorous independent oversight mechanisms, with
technical understanding of how surveillance worked, to enable an examination to be made
of the human rights implications of surveillance by the security services. Finally, she noted
that a special procedures mandate holder with technical expertise could provide guidance
about good practices and about what the human rights framework required to ensure the
protection of the right to privacy. Ms. Botero added that there was no uniformity in the
domestic standards that regulated surveillance and said that a good practice at national level
was to have an expert body that would focus specifically on technology and human rights in
the context of surveillance. She noted that oversight could be institutional, judicial, interorganic and through an ombudsperson, that procedural guarantees should include prior
judicial authorization of surveillance measures and that the legal basis and criteria for the
decision should be public.
51.
Turning to a question on the obligation of States to provide an effective remedy for
violations of the right to privacy, Ms. Cleveland noted that while article 2 of the
International Covenant on Civil and Political Rights provided an obligation for States to
grant an effective remedy, this was a very difficult question, owing to the secrecy of
13
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents