A/HRC/32/38
conduct surveillance may depend on the extent to which business enterprises cooperate
with or resist such surveillance.
1.
Requests for customer data
58.
As Internet service providers, social networking platforms, search engines, cloud
service providers and other companies transmit or amass enormous quantities of customer
data, the volume of government requests for user information based on local laws and
regulations has also begun to rise. Several major Internet companies have reported an
increase in requests.43 Many of these requests are issued by law enforcement and
intelligence agencies. State oversight of these requests varies, ranging from prior judicial
authorization44 to high-level executive approval45 to none at all. Licensing agreements and
the law may limit the ability of the private sector to resist these requests or compel
accountability. Even content-hosting platforms, which lack physical presence in certain
jurisdictions where they operate, may face the wholesale blocking of their service and
attempts to intimidate employees of corporate subsidiaries. Nevertheless, companies in all
areas of the information and communications technology industry are capable of
establishing and exercising varying degrees of leverage in their relationships with States to
resist or mitigate the harm caused by abusive application of the law. Effective strategies of
resistance include: the inclusion of human rights guarantees in licensing agreements and
other relevant contracts; restrictive interpretations of government requests; negotiations
with government officials about the scope of such requests; judicial challenge of overbroad
requests or laws; providing affected individuals, the media or public with relevant
information; and suspension of service within, withdrawal from, or decisions not to enter a
particular market.
2.
Sale of surveillance and censorship equipment
59.
The private sector supplies hardware, software and other technologies that enable
States to intercept, store or analyse communications and other information. Infrastructure
vendors, hardware manufacturers and software developers may design or customize
products on behalf of States, or supply dual use equipment and technology that States
subsequently tailor for their own needs. Internet and telecommunication service providers
may also purchase equipment or software from these companies to install on their network
components in order to comply with legally mandated interception protocols in the States
where they operate. States may rely on these products and services to target, harass or
intimidate members of vulnerable groups.
3.
Covert surveillance
60.
States may also covertly tap into the technical infrastructure belonging to service
providers and content platforms in order to intercept a wide variety of information,
including communications, user account information, and telephone and Internet records.
States reportedly tamper with computer hardware while en route to customers, infiltrate
private networks and platforms with malicious software, hack into specific devices, and
exploit other digital security loopholes. When business enterprises have notice of such
surveillance, questions concerning their human rights responsibilities may arise, such as
providing notice to customers or mitigating such harm through security measures.
Companies that sell equipment and services to Governments to implement covert
43
44
45
16
See recent transparency reports from Google, Facebook, Dropbox, Twitter and Microsoft.
Sweden, Act on Signal Surveillance for Defense Intelligence Activities, sect. 4 (3).
Australia, Telecommunications (Interception and Access) Act 1979, sect. 9 (1).
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