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HRC, TOPIC AREA B: THE RIGHT TO PRIVACY IN THE DIGITAL AGE

HUMAN RIGHTS COUNCIL


TOPIC AREA B: THE RIGHT TO PRIVACY IN THE DIGITAL
AGE

Chair: Evina Karamanli, Co-Chair: Marija Markovic

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HRC, TOPIC AREA B: THE RIGHT TO PRIVACY IN THE DIGITAL AGE

TABLE OF CONTENTS
TABLE OF CONTENTS

INTRODUCTION

UNDERSTANDING PRIVACY VIOLATIONS

TYPES OF PROTECTION NEEDED

I. MONITORING AND SURVEILLANCE OF COMMUNICATION

II. DATA PROTECTION

OPPORTUNITIES FOR ACTION

QARMAS

CONCLUSION

10

FURTHER RESEARCH

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TOPIC B: THE RIGHT TO PRIVACY IN THE DIGITAL AGE


Combined and collective action by everybody can end serious violations of human
rights That experience inspires me to go on and address the issue of Internet [privacy],
which right now is extremely troubling because the revelations of surveillance have
implications for human rights People are really afraid that all their personal details
are being used in violation of traditional national protections.1

I.

INTRODUCTION

Digital communications technologies, including mobile smart-phones, WiFi-enabled


devices and Internet, have become both prevalent and increasingly familiar become in
everyday life. The real-time communication and the dramatic improvement of access to
information resulted to the innovation in communication technologies boosting the
freedom of expression and facilitating global debate and the subsequent democratic
participation. With no doubt, these dynamic technologies both amplify the voice of
human rights defenders and supply them with the opportunity to report and reveal abused;
in other words, they signify the better enjoyment of human rights.2
In the contemporary digital age, the capacity of governments, organisations and,
even, individuals to be in complete control of monitoring, data collection and, inevitably,
interception has been enhanced by the aforementioned communication technologies,
especially since there is no longer any limitation by scale or duration in the effectiveness

Haroon Siddique, Internet privacy as important as human rights, says UN's Navi Pillay, The
Gardian, 26th December 2013. Available at:
http://www.theguardian.com/world/2013/dec/26/un-navi-pillay-internet-privacy. Last access: 5th August
2015.
2 UN Human Rights Council, Report of the Office of the United Nations High Commissioner for
Human Rights on the right to privacy in the digital age, 30th June 2014, A/HRC/27/37, para. 1.
Available at:
http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session27/Documents/A.HRC.27.37_ en.pdf.
Last access: 5th August 2015.

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of a State to conduct surveillance. Moreover, the elimination of both financial and


practical deterrents when conducting surveillance has resulted to the subsequent reduction
of the costs of technology and data storage. Consequently, the States possess a
considerable capability to conduct more concurrent, intrusive, focused and extensive
monitoring than ever before. In other words, mass surveillance is not only vulnerable but
also facilitated by the technological platforms upon which life - social, economic,
political - is increasingly reliant.3
Due to the currently applicable policies and practices, there has been deep concern
concerning the exploiting the vulnerability of digital communications technologies to
monitoring and interception worldwide. There are examples of digital monitoring in
jurisdiction around the world, which created the impression that mass surveillance is a
dangerous habit that takes the place of the general rule instead of a measure used in
exceptional circumstances. There has, also, been a constant threat by some governments
that, if they do not have direct access to communication traffic, cables for surveillance
purposed or information on employees and customers at specific companies, they will
ban the services of wireless equipment companies, and, therefore, telecommunication.
Furthermore, there has been reportedly use of surveillance of telecommunications
networks in order to target either political opposition members or political dissidents.
Meanwhile, the surveillance by host governments of communications at international
events has also been reported. Even non-State actors are developing digital monitoring
tools. All in all, ass surveillance technologies, which are entering the global market, raise
the risk of the escape of governmental control to the digital surveillance.4

II.

UNDERSTANDING PRIVACY VIOLATIONS

UN Human Rights Council, Report of the Office of the United Nations High Commissioner for
Human Rights on the right to freedom of opinion and expression, Frank La Rue, 17th April 2013, A/HRC/
23/40, para. 3. Available at: http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/
Session23/A.HRC.23.40
_EN.pdf. Last access: 5th August 2015. Last access: 5th 4 UN
Human Rights Council, supra note 2, para. 3.

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In 2011, the UN Human Rights Councils Special Rapporteur on the promotion and
protection of the right to freedom of opinion and expression referred to the inadequate
protection of the right to privacy and data protection4 followed by the fact that there is
[a] number of States introducing laws or modifying existing laws to increase their power
to monitor Internet users activities and content of communication without providing
sufficient guarantees against abuse6 ultimately effecting their right to freely express
themselves without anonymity. In his report, he acknowledged that even thou some
exceptional circumstances, under which the right to privacy can be subject to limitations
or restrictions, do exist, they fall under the scope of administration of criminal justice,
prevention of crime or combating terrorism.7 Nevertheless, it is quite difficult for policymakers, who wish to create concrete laws, to tell the difference between special
circumstances ordering active surveillance and abuse of power.
Consequently, there is an extreme distrust for actual methods of privacy protection,
due to growing restrictions on governmental access to private activities of technological
nature and the illegal surveillance.8 This situation influences how citizens perceive of the
government along with their trust to it, especially when it comes to data protection and
interaction among states that do not share the same point of view on this issue.9 Even
though exceptions as far as national security and criminal justice exist, they are not
clearly defined creating legal loopholes due to the unclear interpretation of law.10 As a
result, one of the arising issues is for whom the law applies to based on the territory and
jurisdiction.11 Cross-border and extraterritorial surveillance may not fall within a States
jurisdiction, since it depends on the interpretation of the obligations arising by the
International Covenant on Civil and Political Rights (hereinafter: ICCPR).12 Additionally,
promotion and protection of the right to freedom of opinion and expression,
Frank La Rue, 16th May 2011, A/HRC/17/27. Available at: http://www2.ohchr.org/english/bodies/
hrcouncil/docs/17session/A.HRC.17.27_en.pdf. Last accessed: 5th August 2015.

UN Human Rights Council, Report of the Special Rapporteur on the

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6

Ibid., para. 55. 7


Ibid., para. 59.
8. Paul Schwartz, Differing Privacy Regimes: A Mini-Poll on Mutual EU-U.S.
Distrust, Privacy Perspectives, 22nd July 2014. Available at: https://iapp.org/news/a/differingprivacy-regimes-a-mini-poll-on-mutual-eu-u-s-distrust. Last accessed: 6th August 2015.
9. European Digital Rights, An Introduction to Data Protection, The EDRi papers. 6. 2013.
Available at: https://edri.org/files/paper06_datap.pdf. Last accessed: 6th August 2105.
10.Ibid., p. 21.
11.Ibid., pp. 18-19.
12.UN General Assembly, International Covenant on Civil and Political Rights, 16th December
1966, United Nations, Treaty Series, vol. 999, p. 171, art. 17. Available at: http://
www.ohchr.org/en/professionalinterest/pages/ccpr.aspx. Last accessed: 6th August 2015.

the Human Rights Council (hereinafter: HRC) supports the extraterritorial application of
the ICCPR, as it clearly states that a State party must respect and ensure the rights laid
down in the Covenant to anyone within the power of effective control of that State Party,
even if not situated within the territory of the State Party.13

III. TYPES OF PROTECTION NEEDED

According to the United Nations (hereinafter: UN) and the civil society reports, the
two majors violations pointed to are mass surveillance and data collection.14

i. Monitoring and Surveillance of Communication

One of the most controversial issues in the right to privacy constitutes of the legitimacy
of monitoring and the limit of surveillance.15 Governmental agencies all over the world
are still pushing for the expansion of capabilities in surveillance via investigations, which
are are mass communications and/or targeted, despite the preventive agreements
concerning the interception of communication - both oral and digital - without judicial
approval.16 When facing serious threats, such as acts of terrorism, surveillance systems
have proofed to be effective. Nevertheless, this would be impossible without the consent
or even the help from major telecommunications carriers17, calling into question the
balance between the right to security and the right to privacy.

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13. UN Human Rights Committee, General Comment No. 31 [80]: The Nature of the General
Legal Obligation Imposed on States Parties to the Covenant (CCPR/C/21/Rev.1/Add. 1326),
2004.
14. UN Human Rights Council, The Right to Privacy in the Digital Age: Report of the
Office of the United Nations High Commissioner for Human Rights (A/HRC/27/37), 30th
June 2013. Available at: http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/
Session27/Documents/A.HRC.27.37_ en.pdf. Last accessed: 6th August 2015; Deborah
Brown, Digital rights and the UN: recent and upcoming UN resolutions. 2014.
15. White & Case, International Data Protection and Privacy Law, 2009.
16. David Rosen, Four ways your privacy is being invaded. 11th September 2012. Available at:
http://www.salon.com/2012/09/11/four_ways_your_privacy_is_being_invaded/. Last
Accessed: 6th August 2015.
17. Ibid.

The effectiveness of surveillance technologies ranging from [r]eal-time interception


capabilities which allow States to listen to and record phone calls to websites visits,
access to emails and mass media has been well noted.5 But, most importantly, the
involvement of the private sector by third party service providers (i.e. telephone carriers,
Internet suppliers) provided the States with access at a really high rate.6 Governmental
requests to Google in order to gain access to their communication data has almost
doubled, reaching 21,389 requests during the second semester of 2012.7 States are
responsible to ensure the protection of human rights standards in the private sector,
despite the conflict of interest that may arise when States are obligated to complicity by
the very same subjects.8

ii. Data Protection

Once information and communications technologies (hereinafter: ICTs) became more


accessible, the protections of the human right to privacy became increasingly difficult.9

UN Human Rights Council, supra note 3, para. 34.


Ibid.
7 See http://www.google.com/transparencyreport/userdatarequests/.
8 UN General Assembly, International Covenant on Civil and Political Rights, 1966; Carly Nyst,
Interference-Based Jurisdiction Over Violations of the Right to Privacy, European Journal of
International
Law.
21st November 2013. Available at: http://www.ejiltalk.org/interference-basedjurisdiction-over-violations-of-the-right-to-privacy/.
Last accessed: 6th August 2015.
9 UN Human Rights Council, supra note 3, para. 15.
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By this same reasoning, especially due to the rapidly evolving technological advances,
the right to deny access to personal data should be afforded.10 Personal data should
simply be considered as any piece of information or a set of information that can
personally identify an individual or single them out as an individual. In this regard,
information, such as the Internet Protocol (hereinafter: IP) address can be considered as
personal data.11
In order to combat this phenomenon, the European Union (hereinafter: EU) has
created a passed a set of directives in order to enforce the legal framework for the right to
privacy but also to clarify any ambiguities.12 Specifically, both he European Data Privacy
Law and the European Union Data Privacy Direction provide with the necessary legal
framework for data privacy laws to Member-states belonging in the same regional bloc.13
Although he Directive does not itself analyse the rights of European individuals and/or
companies, it serves as the framework for discussing data protection laws within the EU,
creating the system to ensure the protection of personal data and privacy.14 For example,
the footprints left by internet users can be used to trace online activity. One method to
help to ensure online privacy is anonymisation, in other words removing or obscuring
information from these electronic traces that would allow direct or indirect identification
of a person. Another action to protect personal data consists of the principle that a data
controller can only collect and use personal data for a specific purpose or purpose
limitation, which contributes to the limitation of the use of personal data. Moreover,
consent or permission to use personal data may protect users, since they must be properly
informed and offer their consent by their own free will.15
10

Ibid., para. 48.


European Digital Rights, supra note 9.
12 White & Case, supra note 15, p. 3.
13 Ibid.
14 EU Directive 95/46/EC of the European Parliament and the Council of 24th October 1995 on the
Protection of Individuals with Regard to the Processing of Personal Data and the Free Movement of Such
Data, 1995 O.J. L 281, ch. I, art. 4(1); Donald C. Dowling, Jr., Preparing To Resolve US - Based
Employers Disputes Under Europes New Data Privacy Law, 2 J. ALT. DISP. RESOL. IN EMP. no. 1 at 31
(Spring 2000), reprinted at 1 ALSB INTL BUS. L.J. 39. 2000.
15 European Digital Rights, supra note 9.
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IV.

OPPORTUNITIES FOR ACTION

There are still many practical challenges remaining to be faced concerning the right
to privacy in the digital age. The main obstacle is the way to respect a States sovereignty
and its security measures within a legal framework successfully reaffirming fundamental
individual human rights. Indeed, States must explain clearly the cases that would qualify
for privacy breaches. Thus, governments should adopt both precise and clear legislation,
which will help to protect the right to privacy.16 Specifically,[l]egislation must stipulate
that State surveillance of communications must only occur under the most exceptional
circumstances and exclusively under the supervision of an independent judicial authority.
Safeguards must be articulated in law relation to the nature, scope and duration of the
possible measures, the grounds required for ordering them, the authorities competent to
authorize, carry out and supervise them, and the kind of remedy provided by national
law.30
Due to the continuous technological advances, States must review and update their
legislation in order to reassure that its not irrelevant or outdated. Moreover, in order to
increase public awareness and transparency, States should pay attention when
approaching third party organisations for assistance with data sharing and mass
surveillance. Last but not least, given the crucial role of the private sector, international
legal framework must incorporate language addressing the right to privacy, maintaining
high standards and taking into consideration the direct effects that the aforementioned
organisations have.31

V.

QARMAS(QUESTIONS A RESOLUTION MUST ANSWER)

- To what extend should states review their procedures, practices and legislation on the
surveillance of communications, interception and collection of personal data - including
16

UN Human Rights Council, supra note 3; UN Human Rights Council, Report of the Working Group on

the Universal Periodic Review, A/HRC/14/10/Add.1, 1st June 2010.

Available

at: http://daccess-dds-

ny.un.org/doc/UNDOC/GEN/G10/138/98/PDF/G1013898.pdf?OpenElement.

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mass surveillance - in order to uphold the right to privacy by ensuring the full and
effective implementation of all relevant obligations under international human rights law?
- What could be the possible international human rights mechanisms in relation to
ensuring privacy and freedom of expression? Should States attempt the creation of a
legally binding instrument?
- Should surveillance confirm with principles of proportionality, legitimacy, and necessity
principles that are not contained in the ICCPR but are promoted by a coalition of
advocacy groups?
- Do States human rights obligations extend beyond their borders and jurisdiction?
- How should States establish or maintain existing independent, effective domestic
oversight capable of ensuring transparency, as appropriate, and accountability for
surveillance and/or interception of communications and the collection of personal data?

VI.

CONCLUSION

There is a general consensus among scholars that the legal framework related to the
right to privacy must change in order to meet the needs of the new digital age.32
International documents, including the Universal Declaration of Human Rights
(hereinafter: UDHR) and the ICCPR have underlined the importance of the maintenance
and preservation of human rights. Although current circumstances, such as technological
advancements, have questions the right to privacy, the Member-States of the HRC have
always been staunch defenders for supporting this right.33 Still, both domestic and
international law should adapt to new technology, in order to avoid their large-scale

Last accessed: 7th August 2015.


30.UN Human Rights Council, supra note 3, para. 81.
31.Ibid.
32.Julie E. Cohen, Examined Lives: Informational Privacy and the Subject as Object, 52 STAN.
L. REV. pp. 1373-1374. 2000. (noting that "[t]here is much disagreement about what comes
next, but there is also a growing (if still inchoate) consensus that something needs to be done").
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33.Carly Nyst, supra note 21.

violations.17 Particularly, the collection of personal data and information for security
purposes leading to surveillance may sometimes be illegal. Due to the lack of
transparency, it is necessary to adopt measures in order to maintain the trust of the
citizens towards to both the government and private sector. Security and privacy in the
digital age are balancing with difficulty. This is why they require the cooperation of the
private businesses, the government and, of course, the civil society. Legal decisions will
mostly determine that evolving balance allowing the policy-makers to implement really
effective safeguards.

VI. FURTHER RESEARCH

Delegates should begin their research by:


- examining the international legal framework of the right to privacy;
- identifying challenges faced by modern communications technologies;
- fostering understanding about the implementation of the right to privacy by
governments, the private sector and the civil society;
- examining the extent to which national and international surveillance may infringe with
the right to privacy;
- identifying ways ensuring the protection and, then, promotion of the right to privacy.

VII. Relevant legislation, reports and initiatives

Report of the UN Special Rapporteur on the Right to Freedom of


Opinion and Expression, A/HRC/23/40. Available at:

http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session23/A.H
RC.23.40_EN.pdf

17

Ibid.; Human Rights Watch, Joint Letter from Civil Society Organizations to Foreign Ministers of
Freedom Online Coalition Member States, 2014.

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Report of the UN Special Rapporteur on human rights and fundamental


freedoms while countering terrorism, A/HRC/13/37. Available at: http://
www2.ohchr.org/english/bodies/hrcouncil/docs/13session/A-HRC-13-37.pdf

Convention for the Protection of Individuals with regard to Automatic


Processing of Personal Data. Available at:

Convention
at:

on

Cybercrime.

Available

http://conventions.coe.int/Treaty/EN/Treaties/Html/185.htm
-

Declaration of the Committee of Ministers on Risks to Fundamental Rights


stemming from Digital Tracking and other Surveillance Technologies. Available
at: https://wcd.coe.int/ViewDoc.jsp?id=2074317

International Principles for the Application of Human Rights to


C o m m u n i c a t i o n s S u r v e i l l a n c e . Av a i l a b l e a t : h t t p s : / /
en.necessaryandproportionate.org/

Global Governance and Surveillance Reform: Five Principles. Available at:

https://www.reformgovernmentsurveillance.com/
-

Big Brother Watch and others v. UK, European Court of Human Rights.
Available at:

http://hudoc.echr.coe.int/eng?i=001-140713#{"itemid":["001-140713"]}
-

Centrum for Rttvisa v. Sweden, European Court of Human Rights. Available at:
http://centrumforrattvisa.se/wp-content/uploads/2012/09/Regeringens-svarFRA.pdf

Global Work Initiative. Available at: https://www.globalnetworkinitiative.org/

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