A/HRC/35/22
route. 31 When specific services or platforms are disrupted, governments typically target
those that are the most efficient, secure or widely used. 32
B.
Government access to user data
17.
Government surveillance today relies on access to communications and associated
data belonging to users of privately owned networks. While such access frequently requires
the assistance of private actors, it may also be obtained without their knowledge or
involvement. As with other forms of surveillance, government access to user data may
interfere with privacy in a manner that can both directly and indirectly limit the free
development and exchange of ideas (see A/HRC/23/40, para. 24). Undue access to personal
data implicitly warns users to think twice and possibly avoid controversial viewpoints, the
exchange of sensitive information and other exercises of freedom of expression that may be
under government scrutiny (see A/HRC/27/37, para. 20).
Requests for user data
18.
Vague laws and regulations violate the legality requirement (see A/HRC/23/40,
para. 50). The Communications and Multimedia Act of Malaysia, for example, permits
authorities to order the disclosure of “any communication or class of communications” on
“the occurrence of any public emergency or in the interest of public safety”. The Act does
not define the conditions that trigger a public emergency and certification by the King is
deemed “conclusive proof on the point”.33 In Qatar, law enforcement enjoys a broad right to
seek access to providers’ customer communications in cases of national security or
emergency.34 These provisions empower authorities to request user data based on a mere
assertion of national security. Users are thus unable to predict with reasonable certainty the
circumstances under which their communications and associated data may be disclosed to
authorities.
19.
Providers should only be compelled to release user data when ordered by judicial
authorities certifying necessity and proportionality to achieve a legitimate objective. The
Criminal Code of Canada requires law enforcement to submit requests for the disclosure of
telephone records in criminal investigations to a judge for approval. 35 In Portugal, the
authorities must obtain a judicial order to compel the disclosure of communications data. 36
However, national law often exempts user data requests from judicial authorization. In
Bangladesh, the authorities require only executive branch approval to access
communications data belonging to telecommunications subscribers on the grounds of
national security and public order.37
20.
Laws that require private actors to create large databases of user data accessible to
the government raise necessity and proportionality concerns. In Kazakhstan, telephone
numbers, e-mail and Internet Protocol (IP) addresses and billing information must be stored
by the provider for two years. 38 The Russian Federation requires private actors to store the
content of all their customers’ calls and text messages for six months, and related
communications metadata for three years. 39 Both countries also require such data to be
stored locally. 40 In countries where mobile phones are a dominant means of
communication, mandatory SIM card registration laws effectively require the majority of
the population to divulge personally identifiable information (see A/HRC/29/32, para. 51).
31
32
33
34
35
36
37
38
39
40
Deniz Duru Aydin, “Five excuses governments (ab)use to justify Internet shutdowns” Access Now (6
October 2016).
Article 19 submission, p. 2.
Malaysia, Communications and Multimedia Act (1998), sect. 266.
Qatar, Decree Law No. (34) of 2006.
See submission from Canada, p. 6.
Portugal, Criminal Proceedings Code, arts. 187-190.
Bangladesh, Telecommunication Regulatory Act (2001), sect. 97 (Ka).
Kazakhstan, Government resolution No. 1593 (23 December 2011).
OHCHR, letter to the Government of the Russian Federation, 28 July 2016 (OL RUS 7/2016).
Article 19 submission, p. 5.
7
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