A/HRC/13/37 United Nations General Assembly Distr.: General 28 December 2009 Original: English Human Rights Council Thirteenth session Agenda item 3 Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin Summary The Special Rapporteur, in chapter I of the present report, lists his key activities from 1 August to 15 December 2009. The main report, contained in chapter II, highlights several concerns of the Special Rapporteur regarding the protection of the right to privacy in the fight against terrorism. The importance of the right to privacy and data protection is highlighted in section A. Article 17 of the International Covenant on Civil and Political Rights is flexible enough to enable necessary, legitimate and proportionate restrictions to the right to privacy. The Special Rapporteur argues, in section B, that article 17 should be interpreted as containing elements of a permissible limitations test. In this context, he calls upon States to justify why a particular aim is legitimate justification for restrictions upon article 17, and upon the Human Rights Committee to adopt a new general comment on article 17. The Special Rapporteur highlights the erosion of the right to privacy in the fight against terrorism in section C. This erosion takes place through the use of surveillance powers and new technologies, which are used without adequate legal safeguards. States have endangered the protection of the right to privacy by not extending pre-existing safeguards in their cooperation with third countries and private actors. These measures have not only led to violations of the right to privacy, but also have an impact on due process rights and the freedom of movement — especially at borders — and can have a chilling effect on the freedom of association and the freedom of expression. Without a rigorous set of legal safeguards and a means to measure the necessity, proportionality and reasonableness of the interference, States have no guidance on minimizing the risks to privacy generated by their new policies. The Special Rapporteur has identified, in section D, some of the legal safeguards that have emerged through policymaking, jurisprudence, policy reviews and good practice from around the world. GE.09-17804 (E) 270110