International Principles on the Application of Human Rights to Communications Surveillance
[1]Universal
Declaration of Human Rights Article 12, United Nations Convention on
Migrant Workers Article 14, UN Convention of the Protection of the Child
Article 16, International Covenant on Civil and Political Rights,
International Covenant on Civil and Political Rights Article 17;
regional conventions including Article 10 of the African Charter on the
Rights and Welfare of the Child, Article 11 of the American Convention
on Human Rights, Article 4 of the African Union Principles on Freedom of
Expression, Article 5 of the American Declaration of the Rights and
Duties of Man, Article 21 of the Arab Charter on Human Rights, and
Article 8 of the European Convention for the Protection of Human Rights
and Fundamental Freedoms; Johannesburg Principles on National Security,
Free Expression and Access to Information, Camden Principles on Freedom
of Expression and Equality.
[2]Universal Declaration of Human Rights Article 29; General Comment No. 27, Adopted by The Human Rights Committee Under Article 40, Paragraph 4, Of The International Covenant On Civil And Political Rights, CCPR/C/21/Rev.1/Add.9, November 2, 1999; see also Martin Scheinin, "Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism," 2009, A/HRC/17/34.
[3]Communications metadata may include information about our identities (subscriber information, device information), interactions (origins and destinations of communications, especially those showing websites visited, books and other materials read, people interacted with, friends, family, acquaintances, searches conducted, resources used), and location (places and times, proximities to others); in sum, metadata provides a window into nearly every action in modern life, our mental states, interests, intentions, and our innermost thoughts.
[4]For example, in the United Kingdom alone, there are now approximately 500,000 requests for communications metadata every year, currently under a self-authorising regime for law enforcement agencies who are able to authorise their own requests for access to information held by service providers. Meanwhile, data provided by Google’s Transparency reports shows that requests for user data from the U.S. alone rose from 8888 in 2010 to 12,271 in 2011. In Korea, there were about 6 million subscriber/poster information requests every year and about 30 million requests for other forms of communications metadata every year in 2011-2012, almost of all of which were granted and executed. 2012 data available at http://www.kcc.go.kr/user.do?mode=view&page=A02060400&dc=K02060400&boardId=1030&cp=1&boardSeq=35586
[5]See as examples, a review of Sandy Petland’s work, ‘Reality Mining’, in MIT’s Technology Review, 2008, available at http://www2.technologyreview.com/article/409598/tr10-reality-mining/ and also see Alberto Escudero-Pascual and Gus Hosein, ‘Questioning lawful access to traffic data’, Communications of the ACM, Volume 47 Issue 3, March 2004, pages 77 - 82.
[6]Report of the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, May 16 2011, available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/a.hrc.17.27_en.pdf
[7]"People disclose the phone numbers that they dial or text to their cellular providers, the URLS that they visit and the e-mail addresses with which they correspond to their Internet service providers, and the books, groceries and medications they purchase to online retailers . . . I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection." United States v. Jones, 565 U.S. ___, 132 S. Ct. 945, 957 (2012) (Sotomayor, J., concurring).
[8]"Short-term monitoring of a person’s movements on public streets accords with expectations of privacy" but "the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy." United States v. Jones, 565 U.S., 132 S. Ct. 945, 964 (2012) (Alito, J. concurring).
[9]"Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble. These types of information can each reveal more about a person than does any individual trip viewed in isolation. Repeated visits to a church, a gym, a bar, or a bookie tell a story not told by any single visit, as does one's not visiting any of these places over the course of a month. The sequence of a person's movements can reveal still more; a single trip to a gynecologist's office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story.* A person who knows all of another's travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups – and not just one such fact about a person, but all such facts." U.S. v. Maynard, 615 F.3d 544 (U.S., D.C. Circ., C.A.)p. 562; U.S. v. Jones, 565 U.S. __, (2012), Alito, J., concurring. "Moreover, public information can fall within the scope of private life where it is systematically collected and stored in files held by the authorities. That is all the truer where such information concerns a person's distant past…In the Court's opinion, such information, when systematically collected and stored in a file held by agents of the State, falls within the scope of 'private life' for the purposes of Article 8(1) of the Convention." (Rotaru v. Romania, [2000] ECHR 28341/95, paras. 43-44.
[10]The term "due process" can be used interchangeably with "procedural fairness" and "natural justice", and is well articulated in the European Convention for Human Rights Article 6(1) and Article 8 of the American Convention on Human Rights.
[11]The UK Interception of Communications Commissioner is an example of such an independent oversight mechanism. The ICO publishes a report that includes some aggregate data but it does not provide sufficient data to scrutinise the types of requests, the extent of each access request, the purpose of the requests, and the scrutiny applied to them. See http://www.iocco-uk.info/sections.asp?sectionID=2&type=top.
[12]Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, 16 May 2011, A/HRC/17/27, para 84.
[2]Universal Declaration of Human Rights Article 29; General Comment No. 27, Adopted by The Human Rights Committee Under Article 40, Paragraph 4, Of The International Covenant On Civil And Political Rights, CCPR/C/21/Rev.1/Add.9, November 2, 1999; see also Martin Scheinin, "Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism," 2009, A/HRC/17/34.
[3]Communications metadata may include information about our identities (subscriber information, device information), interactions (origins and destinations of communications, especially those showing websites visited, books and other materials read, people interacted with, friends, family, acquaintances, searches conducted, resources used), and location (places and times, proximities to others); in sum, metadata provides a window into nearly every action in modern life, our mental states, interests, intentions, and our innermost thoughts.
[4]For example, in the United Kingdom alone, there are now approximately 500,000 requests for communications metadata every year, currently under a self-authorising regime for law enforcement agencies who are able to authorise their own requests for access to information held by service providers. Meanwhile, data provided by Google’s Transparency reports shows that requests for user data from the U.S. alone rose from 8888 in 2010 to 12,271 in 2011. In Korea, there were about 6 million subscriber/poster information requests every year and about 30 million requests for other forms of communications metadata every year in 2011-2012, almost of all of which were granted and executed. 2012 data available at http://www.kcc.go.kr/user.do?mode=view&page=A02060400&dc=K02060400&boardId=1030&cp=1&boardSeq=35586
[5]See as examples, a review of Sandy Petland’s work, ‘Reality Mining’, in MIT’s Technology Review, 2008, available at http://www2.technologyreview.com/article/409598/tr10-reality-mining/ and also see Alberto Escudero-Pascual and Gus Hosein, ‘Questioning lawful access to traffic data’, Communications of the ACM, Volume 47 Issue 3, March 2004, pages 77 - 82.
[6]Report of the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, May 16 2011, available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/a.hrc.17.27_en.pdf
[7]"People disclose the phone numbers that they dial or text to their cellular providers, the URLS that they visit and the e-mail addresses with which they correspond to their Internet service providers, and the books, groceries and medications they purchase to online retailers . . . I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection." United States v. Jones, 565 U.S. ___, 132 S. Ct. 945, 957 (2012) (Sotomayor, J., concurring).
[8]"Short-term monitoring of a person’s movements on public streets accords with expectations of privacy" but "the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy." United States v. Jones, 565 U.S., 132 S. Ct. 945, 964 (2012) (Alito, J. concurring).
[9]"Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble. These types of information can each reveal more about a person than does any individual trip viewed in isolation. Repeated visits to a church, a gym, a bar, or a bookie tell a story not told by any single visit, as does one's not visiting any of these places over the course of a month. The sequence of a person's movements can reveal still more; a single trip to a gynecologist's office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story.* A person who knows all of another's travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups – and not just one such fact about a person, but all such facts." U.S. v. Maynard, 615 F.3d 544 (U.S., D.C. Circ., C.A.)p. 562; U.S. v. Jones, 565 U.S. __, (2012), Alito, J., concurring. "Moreover, public information can fall within the scope of private life where it is systematically collected and stored in files held by the authorities. That is all the truer where such information concerns a person's distant past…In the Court's opinion, such information, when systematically collected and stored in a file held by agents of the State, falls within the scope of 'private life' for the purposes of Article 8(1) of the Convention." (Rotaru v. Romania, [2000] ECHR 28341/95, paras. 43-44.
[10]The term "due process" can be used interchangeably with "procedural fairness" and "natural justice", and is well articulated in the European Convention for Human Rights Article 6(1) and Article 8 of the American Convention on Human Rights.
[11]The UK Interception of Communications Commissioner is an example of such an independent oversight mechanism. The ICO publishes a report that includes some aggregate data but it does not provide sufficient data to scrutinise the types of requests, the extent of each access request, the purpose of the requests, and the scrutiny applied to them. See http://www.iocco-uk.info/sections.asp?sectionID=2&type=top.
[12]Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, 16 May 2011, A/HRC/17/27, para 84.
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