This submission is made by Privacy International, Access, the Electronic Frontier Foundation, along with ARTICLE 19, the Association for Progressive Communications, Human Rights Watch and the World Wide Web Foundation.
Submissions and recommendations cover five main themes: the meaning of interferences with the right to privacy in the context of communications surveillance, the out-dated distinction between communications data and content, the conceptualisation of mass surveillance as inherently disproportionate, the extra-territorial application of the right to privacy, and the need for legal frameworks to provide protections for the right to privacy without discriminating on the basis of nationality.
We make the following recommendations to OHCHR:
- The High Commissioner should explicitly recognise that any act of interception, collection, control, acquisition, or taking custody of communications amounts to an interference with the right to privacy that must be justified in accordance with the well-established requirements of international human rights law.
- The High Commissioner should reiterate that collection of or access to communications data, to the extent it can even be considered separately from the content of communications, represents an equally serious interference with the right to privacy as interception of communications content.
- The High Commissioner should emphasise that mass surveillance (or “bulk collection”) is an inherently disproportionate interference with human rights.
- The High Commissioner should reiterate that States owe human rights obligations to all individuals subject to their jurisdiction, at a minimum are required to respect the right to privacy of all persons whose communications they handle, and also have positive obligations to ensure and protect the individual’s privacy when the act of conducting surveillance renders individuals within their effective control.
- The High Commissioner should emphasise that the right to privacy is a universal right whose enjoyment does not depend on nationality or location, and caution against legal frameworks that purport to discriminate between nationals and non-nationals with respect to the privacy protections afforded.