US Prism programme: Heed special rapporteur’s call for human rights compliant surveillance laws
07 Jun 2013
ARTICLE 19 is concerned about recent reports that the US National Security Agency (NSA) and possibly other intelligence agencies have direct access to the communications data of millions of internet users under a programme known as Prism. The programme, which gives the NSA direct access to the servers of nine internet companies, was made possible by changes to US surveillance laws made under the Bush government and renewed under the Obama administration. It allows the NSA access to the communications data of the companies’ customers without having to request that information from the companies and without the need for individual court orders.
The revelations about the Prism programme come at a time where governments around the world are seeking access to an increasing amount of communications data in the name of national security and the prevention of crime. These attempts are in contrast with the recent recommendations in the report issued by the UN Special Rapporteur on Freedom of Expression, Frank La Rue, earlier this week. The special rapporteur warns governments about the serious implications of communications surveillance for freedom expression and privacy and urges them to revise their surveillance laws in line with human rights law.
“As the scandal of the National Security Authority’s surveillance activities unfolds in the US, the special rapporteur’s report is a wake-up call for governments around the world that the ability of internet users’ to seek and impart information online cannot be hampered by mass state surveillance,” said Dr Agnes Callamard, ARTICLE 19 executive director. “We call on all governments to fully implement the special rapporteur’s recommendations.”
The report of the special rapporteur must also be fully considered by the US authorities when conducting the inquiry into the legitimacy of the Prism programme. The report underlines how the absence of adequate laws regulating communications surveillance seriously threatens human rights, including the right to freedom of expression. The special rapporteur notes that states are often given free access to information about individuals’ communications retained by domestic communications service providers with little or no oversight or regulation. Similarly, at the international level, cooperation also often occurs outside the law on the basis of the voluntary compliance of the service provider or internet company.
The type and scale of the mass surveillance revealed today also has a massive chilling effect on the right to freedom of expression and information. It is well known that people are much less likely to express themselves and share information if they know or suspect that their personal records are being collected by the government. By undermining people’s confidence in the privacy and security of their online communications, programmes like Prism seriously impede the free flow of information and ideas online.
ARTICLE 19 supports the special rapporteur’s report and recommendations and calls on the US and other governments to fully comply with its recommendations. In particular:
- States must ensure that the respect of human rights is at the heart of their communication surveillance policy
- Communications surveillance can be highly intrusive and may interfere with the rights to freedom of expression and privacy. Any such interference can only be justified if it is clearly defined by law, pursues a legitimate aim and is strictly necessary to the aim pursued
- The lack of judicial authorisation for access to electronic communications or communications data seriously undermines the rule of law. Laws and legal standards governing communication surveillance must therefore be updated, strengthened and brought under legislative and judicial control
- Communications surveillance laws must specify the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to authorise, carry out and supervise them, and the kind of remedy provided by the national law.
- States should enact Mutual Legal Assistance Treaties at international level to regulate access to communications data held by foreign corporate actors
- Identification of users should not be a precondition for access to communications on the internet and mobile phones. On the contrary, States should facilitate private, secure and anonymous communications
- States should not criminalise whistle-blowers and other individuals seeking to expose human rights violations.
ARTICLE 19 also encourages other NGOs and the media to support governments in these efforts by fully reporting on national laws and practices falling short of these standards.