Expert Wants UN Human Rights Groups to Govern Counter-Terrorism Efforts
SECURITY, HOMELAND SECURITY & TERRORISM
Wednesday, April 14, 2010
A special advisor to the United Nations Human Rights Council has recommended that two UN human rights bodies become responsible for monitoring national counter-terrorism efforts to determine whether they violate a right to privacy under international human rights law. If this occurs, nations would have to prove to UN investigators that the surveillance, data gathering, search, and watch list monitoring activities used to prevent terrorist attacks conform with a proposed global declaration on data protection and data privacy. If, in the opinion of the UN, one or more of a nation's counter-terrorism efforts do not satisfy the UN's permissible limitations on the right to privacy, UN Human Rights Committee staff and supportive non-governmental organizations would assist individuals in filing complaints against the nation.
The UN Human Rights Council (the "Council") is an inter-governmental body within the UN system made up of 47 member states that is responsible for promoting and protecting human rights. The UN General Assembly created the Council on March 15, 2006 with the main purpose of addressing alleged human rights violations and making recommendations on them. In spite of criticisms of the Council and a decision of the President George W. Bush Administration to not have the United States join the Council, in 2009, the U.S. changed its position and joined the Council. Thus, the U.S. has joined the list of Council member states that investigate human rights abuses, including many nations with poor records of complying with international human rights law, specifically Cuba, China, Russia, and Saudi Arabia.
The work of the Council includes four areas. Under the Universal Periodic Review, the Council staff and its member states assess the human rights situations in all 192 UN member states. The Council also has an Advisory Committee that serves as the Council's "think tank" providing it with expertise and advice on thematic human rights issues. A Complaints Procedure mechanism allows individuals and organizations to bring complaints about human rights violations to the attention of the Council. The Council also works closely with the UN Special Procedures, which include Special Rapporteurs who are appointed to investigate a specific area of human rights or country-specific human rights situations.
In March 2010, during the 13th session of the Council, the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin (the "Special Rapporteur"), presented a report listing his key activities from August 1 to December 15, 2009, with special emphasis on the right to privacy and data protection (the "Report"). On March 19, 2010, the Council passed a resolution acknowledging the Report and requesting all member states to cooperate fully with the Special Rapporteur.
In the Report, the Special Rapporteur cites several counter-terrorism developments that raise privacy concerns, including:
1. a rise in communications surveillance through the interception of communications by intelligence and law enforcement agencies;
2. expanded initiatives to identify, scan and tag the general public through the use of multiple techniques, including the compilation of lists and databases; the increased surveillance of financial, communications and travel data; the use of profiling to identify potential suspects; the accumulation of ever larger databases to calculate the probability of suspicious activities and identify individuals seen as worthy of further scrutiny; and the use of body scanners that can see through clothing;
3. expanded powers to stop, question, search and identify individuals;
4. the use of biometric techniques, such as facial recognition, fingerprinting and iris-scanning and the centralized collection of biometrics in a database;
5. the expansion of watch-list monitoring, including the "no-fly/selectee" list; and
6. increased monitoring, regulation, interference and control of the movement of people at borders.
In the opinion of the Special Rapporteur, these counter-terrorism activities raise the potential for violations of an internationally recognized "right to privacy." Article 17 of the International Covenant on Civil and Political Rights (the "Covenant") provides that:
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
In the Report, the Special Rapporteur proposes that any counter-terrorism measure that interferes with an individual's right to privacy under Article 17 of the Covenant must fall within "permissible limitations" that permit necessary, legitimate, and proportionate restrictions on the right to privacy. However, Article 17 does not expressly contain a permissible limitations test that details when interference with the right to privacy is justified. Also, the Human Rights Committee, the treaty body committee created under the Covenant (the "Committee"), has not provided guidance in this regard. For this reason, the Special Rapporteur recommends that the Committee's General Comment No. 27 (1999), relating to permissible limitations on the human right to freedom of movement, be applied in the context of the Article 17 right to privacy.
The permissible limitations test, as expressed in General Comment No. 27, includes the following limitations on any restrictions on, or, in the case of the right to privacy, interference with, a human right:
1. any restrictions must be provided by the law;
2. the essence of a human right is not subject to restrictions;
3. restrictions must be necessary in a democratic society;
4. any discretion exercised when implementing the restrictions must not be unfettered;
5. for a restriction to be permissible, it must be necessary for reaching the legitimate aim;
6. restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest protected;
7. any restrictions must be consistent with the other rights guaranteed by the Covenant.
In the Report, the Special Rapporteur calls upon States to prove that a particular counter-terrorism aim or measure that interferes with an individual's right to privacy is a permissible limitation on the right. He also calls upon the Committee to continue monitoring counter-terrorism measures undertaken by States parties, including through the consideration of periodic reports that must be filed under the Covenant and of individual communications (i.e., complaints) against States parties that are permitted under the First Optional Protocol to the Covenant.
In addition to constructing a "permissible limitations" test for enabling UN experts to decide whether a States counter-terrorism measures constitute a justifiable interference with the right to privacy, in the Report, the Special Rapporteur "identified the legal safeguards that have emerged through policymaking, jurisprudence, policy reviews and good practice from around the world," including:
1. The principle of minimal intrusiveness: States should be required to have exhausted less-intrusive techniques before resorting to others and, absent a proven need, should avoid creating a major new database, sharing information on databases, or implementing proposals for increased surveillance.
2. The principle of purpose specification restricting secondary use: States should be obliged to provide a legal basis for the reuse of information for a purpose beyond the one that justified the original collection.
3. The principle of oversight and regulated authorization of lawful access: States should take actions to institutionalize processes for the independent authorization of surveillance and data collection through a judicial warrant and/or subpoena process with the opportunity for independent review with internal and external accountability systems to ensure effective remedies for individuals.
4. The principle of transparency and integrity: Open debate and scrutiny by legislatures, judicial bodies and the public are essential to understanding the advantages and limitations of surveillance techniques.
5. The principle of effective modernization: States should conduct privacy impact assessments that articulate privacy considerations in the design of new surveillance techniques, including data minimization and rights to redress. International standards must be adopted to require States to enhance their safeguards to reflect technological change.
After proposing the use of a permissible limitations test to justify interference with the right to privacy and identifying the legal safeguards regarding the use of counter-terrorism measures that impact the right to privacy, the Special Rapporteur makes certain recommendations to legislative assemblies and governments. Predictably, the Special Rapporteur would place in the hands of the Council, through its Universal Periodic Review and Complaints Procedure, and the Committee, through its treaty monitoring and communications/complaints processes, ultimate responsibility for making sure the recommendations are implemented.
For legislative assemblies, the Special Rapporteur recommends that:
1. Any interference with the right to privacy, family, home or correspondence should be authorized by provisions of law that are publicly accessible, particularly precise and proportionate to the security threat, and offer effective guarantees against abuse.
2. National laws must comply with international standards for privacy and human rights protection, including clear legal protections for individuals to prevent the excessive collection of personal information; measures to ensure the accuracy of information; limits on the use, storage, and sharing of the information; and mandates that require individuals to be notified of how their information is used and that they have a right to access and redress, regardless of nationality and jurisdiction.
3. Strong independent oversight mandates must be established to review policies and practices, in order to ensure that there is strong oversight of the use of intrusive surveillance techniques and the processing of personal information.
4. All current and proposed counter-terrorism policies must include privacy impact assessments to review and communicate how the policy and technologies ensure that privacy risks are mitigated and privacy is considered at the earliest stages of policymaking.
5. Stronger safeguards should be developed to ensure that the sharing of information between governments continues to protect the privacy of individuals.
6. Stronger regulations should be developed to limit Government access to information held by third parties, including reporting schemes, and to minimize the burden placed on third parties to collect additional information, and that constitutional and legal safeguards apply when third parties are acting on behalf of the State.
7. Legislative language should be reconsidered to prevent the use of anti-terrorism powers for other purposes.
In the case of Governments, the Special Rapporteur recommends that:
1. Governments should articulate in detail how their surveillance policies uphold the principles of proportionality and necessity, in accordance with international human rights standards, and what measures have been taken to ensure against abuse.
2. There should be open discussion and regular reporting on information-based surveillance programmes, including reports to legislative and oversight bodies, as well as independent reviews of practices to inform future policymaking and deliberation on anti-terrorism policy.
3. Any watch list- or profile-based surveillance programme must include due process safeguards for all individuals, including rights to redress. Individuals should be informed as to why and how they were added to watch lists or how their profile was developed, and of the mechanisms for appeal without undue burdens.
4. Any information-based counter-terrorism programme should be subjected to robust and independent oversight.
5. Equal amounts of research and development resources be devoted to privacy-enhancing technologies.
If implemented, the Special Rapporteur's new "permissible limitations" test, legal safeguards, and recommendations for legislative assemblies and Governments would institutionalize the UN's human rights global governance of national, regional, and international counter-terrorism activities, vesting final authority in such matters with the UN General Assembly, the Council, and the Committee. To facilitate this process, the Special Rapporteur recommends that the Council pursue a global declaration on data protection and data privacy and that the Committee draft a new general comment on Article 17 of the Convention, with the goal of elaborating a proper limitation test that provides States with guidance on appropriate safeguards in relation to surveillance and data collection. If one or more of these steps are implemented, the ability of UN member states to work individually or collectively to combat terrorism would become subject to intense review and criticism by the UN Secretariat, NGOs, and other UN member states who, for domestic political reasons, may not support the use of effective counter-terrorism measures.
Jim Kelly is the President of Solidarity Center for Law and Justice, P.C., a public interest civil and human rights law firm based in Atlanta, Georgia. The opinions expressed herein are his own.
A JOINT PROGRAM OF
