The panopticon of the digital age

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16 July 2014 – The advent of the digital age has given rise to new questions about privacy. UN High Commissioner for Human Rights Navi Pillay again sounds the alarm regarding a “disturbing” lack of transparency in governmental surveillance policies and practices.

The Office of the High Commissioner for Human Rights has published a report entitled “The Right to Privacy in the Digital Age” warns that Governmental mass surveillance is “emerging as a dangerous habit rather than an exceptional measure” and that practices in many States reveal “a lack of adequate national legislation and/or enforcement, weak procedural safeguards, and ineffective oversight.”

The “de facto coercion of private sector companies to provide sweeping access to information and data relating to private individuals without the latter’s knowledge or consent” Pillay says, “is severely hindering efforts to ensure accountability for any resulting human rights violations, or even to make us aware that such violations are taking place, despite a clear international legal framework laying down governments’ obligations to protect our right to privacy, and other related human rights.”

“The technological platforms upon which global political, economic and social life are increasingly reliant are not only vulnerable to mass surveillance”, the report says, “they may actually facilitate it.” Yet, the report does emphasize that when conducted in compliance with the law, including international human rights law, surveillance of electronic communications data can be necessary and effective for legitimate law enforcement or intelligence purposes.

Where there is a legitimate aim and appropriate safeguards are in place, a State might be allowed to engage in surveillance. “However,” the report says, “the onus is on the Government to demonstrate that interference is both necessary and proportionate to the specific risk being addressed.”

The laws governing such surveillance must also be publicly accessible and must contain provisions that ensure that collection of, access to and use of communications data are tailored to specific legitimate aims, as noted by the UN Human Rights Committee. The laws must be sufficiently precise and provide for effective safeguards against abuse.

“The complexity of the challenges to the right to privacy in this rapidly and dramatically evolving digital age is going to require constant scrutiny and dialogue between all key sectors, including Governments, civil society, scientific and technical experts, the business sector, academics and human rights specialists,” underlined Ms. Pillay.