The Council has before it the report of the Office of the United Nations High Commissioner for Human Rights on the right to privacy in the digital age (A/HRC/27/37). The panel was called for in a decision, A/HRC/25/117, of the Council, adopted on 24 March.

Panellists were: Marko Milanovic, associate professor, Nottingham University (the panel moderator); Catalina Botero Marino, special rapporteur on freedom of expression, Inter-American Commission on Human Rights; Sarah Cleveland, professor, Columbia Law School (US); Yves Nissim, deputy chief CSR officer at Orange, former chair of the Telecommunications Industry Dialogue; and Carly Nyst, legal director, Privacy International.

According to unofficial sources, Flavia Pansieri, deputy high commissioner for human rights, in an opening statement [pdf] said that for millions of people, the digital age opened the door to emancipation and had been perhaps the greatest liberation movement the world had ever known. But, she said, those digital platforms are vulnerable to surveillance, interception and data collection, and deep concerns have been expressed as policies and practices that exploited this vulnerability have been exposed around the globe.

Milanovic called the topic one of the most important in modern human rights law, sources said. Modern technologies can be used both for good purposes and violations of human rights, particularly the right to privacy.

Nyst said the right to privacy is a fundamental part of human dignity, and that it guarantees the protection of other human rights, such as the right to freedom of expression. The Universal Declaration of Human Rights and International Covenant on Civil and Political Rights enshrined the protection of the right to privacy, as do most national constitutions and some regional conventions, she said.

Botero, according to the sources, said systematic collection of data could have a negative effect on human rights, including the right to privacy and the right to freedom of expression. Freedom of association and assembly, freedom of expression, and the right to health and sexuality also could be under threat. Sufficient controls need to be developed to prevent those negative effects.

Cleveland argued that states are clearly obligated to protect the right to privacy and freedom of expression of all persons within their territory or jurisdiction. And actions outside of a state’s territory also fall under this obligation. Surveillance activities are not in themselves unlawful, she said, and states have legitimate law enforcement and security interests that human rights were designed to accommodate.

Nissim said that a few years ago during the first “Arab Spring” in some countries, governments asked Orange to do things that it did not want to do. Orange sought to resolve issues where governments had direct access to their networks, and to have a process in which governments could ask it to do things. Based on the United Nations Guiding Principles Orange developed a set of 10 principles.

The telecom company had thousands of people on the ground, and considered their safety to be most important, even above privacy. Governments were direct stakeholders, Nissim said, and Orange was in the middle of the problem. The company was the technical solution, but it preferred behaviour that respected human rights, freedom of speech and privacy. It took the view that Governments should be more transparent about their surveillance activities, the sources said.

Discussion

During the discussion, according to the sources, speakers emphasised the importance of ensuring that state surveillance of citizens is proportionate and fair, respects international law and conventions, and is governed by the rule of law with oversight by civil authorities. A need was seen for a review of procedures, practices and legislation with regard to digital communications, in order to ensure protection of the right to privacy.

It was also agreed that collection of personal information of foreigners is a clear violation of international protection of the right to privacy, and that the fight against terrorism cannot be an excuse for such a human rights violation. The important role of internet providers was noted, and they were encouraged to be more transparent and accountable, the sources said. It was noted that for companies, data such as call logs are retained for technical reasons. Any access that the government has to technical data held by companies requires appropriate legal authorisation.

A number of countries and other parties spoke in the discussion, including Germany on behalf of a group of seven countries, European Union, Cuba on behalf of a group of like-minded countries, Pakistan on behalf of the Organization for Islamic Cooperation, Canada, India, Indonesia, Belgium, Ireland, Estonia, Malaysia, United Nations Educational, Scientific and Cultural Organization (UNESCO), United Arab Emirates, Russia, France, Slovenia, Italy, Netherlands, Venezuela, China, Australia, United States, Ecuador, Sierra Leone, Algeria, Romania, and United Kingdom.

Countries particularly raised concern about collection of foreigners’ data, and illegal use of technologies to control citizens and repress freedom of expression. The need for governments to put necessary laws in place was stressed repeatedly.

UNESCO said that it has undertaken a comprehensive study on internet issues that will look at freedom of expression, privacy, access to knowledge and information and ethics of the information society, and will put forward options for action.

Also speaking were: the Union of American Civil Liberties, Association for Progressive Communications, Article 19 International Centre against Censorship, and Korea Centre for United Nations Human Rights Policy.