A/HRC/23/40 13. Innovations in technology throughout the twentieth century changed the nature and implications of communication surveillance. The means by, and frequency with which people are able to communicate expanded significantly. The transition from fixed-line telephone systems to mobile telecommunication and the declining costs of communications services resulted in dramatic growth in telephone usage. The advent of the Internet saw the birth of a number of new tools and applications to communicate at no cost, or at very affordable rates. These advancements have enabled greater connectivity, facilitated the global flow of information and ideas, and increased the opportunities for economic growth and societal change. 14. As information and communication technologies evolved, so did the means by which States sought to monitor private communications. With increased use of telephones came the use of wiretapping, which consists of placing a tap on a telephone wire to listen to private phone conversations. With the replacement of analogue telephone networks with fibre optics and digital switches in the 1990s, States redesigned the networking technology to include interception capabilities (“backdoors”) to permit State surveillance, rendering modern telephone networks remotely accessible and controllable. 15. The dynamic nature of technology has not only changed how surveillance can be carried out, but also “what” can be monitored. In enabling the creation of various opportunities for communication and information-sharing, the Internet has also facilitated the development of large amounts of transactional data by and about individuals. This information, known as communications data or metadata, includes personal information on individuals, their location and online activities, and logs and related information about the e-mails and messages they send or receive. Communications data are storable, accessible and searchable, and their disclosure to and use by State authorities are largely unregulated. Analysis of this data can be both highly revelatory and invasive, particularly when data is combined and aggregated. As such, States are increasingly drawing on communications data to support law enforcement or national security investigations. States are also compelling the preservation and retention of communication data to enable them to conduct historical surveillance. 16. Changes in technology have been paralleled by changes in attitudes towards communications surveillance. When the practice of official wiretapping first commenced in the United States of America, it was conducted on a restricted basis, and was only reluctantly sanctioned by the courts. 2 It was viewed as such a serious threat to the right to privacy that its use had to be restricted to detecting and prosecuting the most serious crimes. Over time, however, States have expanded their powers to conduct surveillance, lowering the threshold and increasing the justifications for such surveillance. 17. In many countries, existing legislation and practices have not been reviewed and updated to address the threats and challenges of communications surveillance in the digital age. Traditional notions of access to written correspondence, for example, have been imported into laws permitting access to personal computers and other information and communications technologies, without consideration of the expanded uses of such devices 2 In the first judicial validation of wiretapping, Justice Brandeis of the United States Supreme Court wrote a scathing dissent that noted that wiretapping was a “subtler and more far-reaching means of invading privacy” that could not be justified under the Constitution. In a chillingly accurate forecast, the eminent jurist predicted: “Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrence of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions.” Olmstead v. United States, 277 U.S. 438 (1928). 5