A/HRC/27/37
A.
The right to protection against arbitrary or unlawful interference with
privacy, family, home or correspondence
15.
Several contributions highlighted that, when conducted in compliance with the law,
including international human rights law, surveillance of electronic communications data
can be a necessary and effective measure for legitimate law enforcement or intelligence
purposes. Revelations about digital mass surveillance have, however, raised questions
around the extent to which such measures are consistent with international legal standards
and whether stronger surveillance safeguards are needed to protect against violations of
human rights. Specifically, surveillance measures must not arbitrarily or unlawfully
interfere with an individual’s privacy, family, home or correspondence; Governments must
take specific measures to ensure protection of the law against such interference.
16.
A review of the various contributions received revealed that addressing these
questions requires an assessment of what constitutes interference with privacy in the
context of digital communications; of the meaning of “arbitrary and unlawful”; and of
whose rights are protected under international human rights law, and where. The sections
below address issues that were highlighted in various contributions.
1.
Interference with privacy
17.
International and regional human rights treaty bodies, courts, commissions and
independent experts have all provided relevant guidance with regard to the scope and
content of the right to privacy, including the meaning of “interference” with an individual’s
privacy. In its general comment No. 16, the Human Rights Committee underlined that
compliance with article 17 of the International Covenant on Civil and Political Rights
required that the integrity and confidentiality of correspondence should be guaranteed de
jure and de facto. “Correspondence should be delivered to the addressee without
interception and without being opened or otherwise read”.3
18.
It has been suggested by some that the conveyance and exchange of personal
information via electronic means is part of a conscious compromise through which
individuals voluntarily surrender information about themselves and their relationships in
return for digital access to goods, services and information. Serious questions arise,
however, about the extent to which consumers are truly aware of what data they are
sharing, how and with whom, and to what use they will be put. According to one report, “a
reality of big data is that once data is collected, it can be very difficult to keep anonymous.
While there are promising research efforts underway to obscure personally identifiable
information within large data sets, far more advanced efforts are presently in use to reidentify seemingly ‘anonymous’ data. Collective investment in the capability to fuse data is
many times greater than investment in technologies that will enhance privacy.”
Furthermore, the authors of the report noted that “focusing on controlling the collection and
retention of personal data, while important, may no longer be sufficient to protect personal
privacy”, in part because “big data enables new, non-obvious, unexpectedly powerful uses
of data”.4
19.
In a similar vein, it has been suggested that the interception or collection of data
about a communication, as opposed to the content of the communication, does not on its
3
4
6
Official Records of the General Assembly, Forty-third Session, Supplement No. 40 (A/43/40), annex
VI, para. 8.
Executive Office of the President of the United States, “Big Data: Seizing Opportunities, Preserving
Values”, May 2014 (available from
www.whitehouse.gov/sites/default/files/docs/big_data_privacy_report_may_1_2014.pdf), p. 54.
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