A/HRC/28/39 Political Rights protected citizens and non-citizens alike.1 Consequently, neither citizens nor non-citizens might be subjected to unlawful or arbitrary interference with their privacy. She also noted that surveillance was often undertaken by States on their own territory, to suppress freedom of expression and association, or to punish journalists, dissidents and other government critics. According to article 17 of the International Covenant on Civil and Political Rights, States had the obligation to respect and ensure the privacy rights of all persons within their territory and subject to their jurisdiction. 23. Ms. Cleveland emphasized that the protections in the International Covenant on Civil and Political Rights applied to persons otherwise subject to the jurisdiction of a State, as recognized by the International Court of Justice2 and the Human Rights Committee.3 That was also the reading that best reconciled the text of the International Covenant on Civil and Political Rights with its content, object and purpose. The Human Rights Committee had long recognized that a State could not avoid its international human rights obligations by taking action outside its territory that it would be prohibited from taking at home. Ms. Cleveland explained that cyber activity transcended territory, that digital surveillance could involve the minimal exercise of physical control by the State over a person or territory and could involve action in one location that had an impact upon a person in another. She stressed that such conduct could engage the human rights obligations of a State. Lastly, she noted that the fact that privacy rights applied to non-citizens or nationals abroad did not mean that surveillance activities were per se always unlawful. Any restriction to the right to privacy to accommodate legitimate national security or law enforcement interests must be adopted while taking full account of the requirements, as provided in international human rights law; in particular they must not be arbitrary or unlawful. 24. Turning to the role of the private sector, the moderator, Mr. Milanovic, noted that private companies aggregated data for their own purposes, and might also be co-opted into governmental schemes. Focussing on the relationship between Governments and private telecommunication companies, he asked how private companies should react to government requests. The Deputy Chief Corporate Social Responsibility Officer at Orange noted that issues relating to various requests that a telecommunication company might receive to collect or keep data regarding their customers or to make their networks “wiretap-ready” became more vivid during the Arab Spring. Telecommunication companies had received requests from Governments – in some cases at gunpoint – that might have had an impact on the the rights to freedom of expression and privacy of their customers. That had led those companies to create the Telecommunications Industry Dialogue on Freedom of Expression and Privacy, to jointly address issues related to freedom of expression and the right to privacy in the telecommunications sector. 4 The Dialogue had published a set of 10 guiding principles on 12 March 2013, which were influenced by the Guiding Principles on Business and Human Rights: implementing the United Nations “Protect, Respect and Remedy” Framework. The principles published by the Dialogue addressed privacy and freedom of expression as they related to the telecommunications sector, specifically exploring the 1 2 3 4 See Human Rights Committee, general comment No. 18 (1989) on non-discrimination. See International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136., and Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 168. See Human Rights Committee, general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant. The Telecommunications Industry Dialogue is currently composed of seven operators and two vendors. See www.telecomindustrydialogue.org. 7