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ISSUES: Privacy
Chapter 2: Surveillance
Mass surveillance will be applied
beyond communications surveillance.
As we move towards ‘smart’ devices
and cities, more and more of our
activities will be collected and
analysed. Smart meters report on
our electricity usage, while smart
cities track individuals and vehicles
using cameras and sensors. Laws
must keep up to date with these
innovations that seek to monitor and
profile us all. As the UN Office of the
High Commissioner for Human Rights
noted in 2014, “The technological
platforms
upon
which
global
political, economic and social life
are increasingly reliant are not only
vulnerable to mass surveillance, they
may actually facilitate it.”
What are the legal frameworks
around mass surveillance?
Mass surveillance is an indiscriminate
measure. Human rights laws require
that any interference with privacy is
legitimate, necessary in a democratic
society and proportionate. Even
where it can be shown to meet a
legitimate aim, mass surveillance
is unlikely to meet the tests of
proportionality and necessity.
Key to this is that governments
are often reluctant to introduce
necessary safeguards to minimise
the information that is collected – ID
programs are increasingly collecting
more information and being required
for more transactions; DNA database
laws resist the deletion of unnecessary
information including the samples
and profiles of innocent people;
and communications surveillance
programs are increasingly trying to
‘collect it all’.
In judging whether mass surveillance
is lawful, courts have weighed on
the scope of the surveillance, the
safeguards in place, the type of
surveillance and the severity of the
pressing social need. They have
concluded that the collection and
retention of information on people
is an act of surveillance that must be
controlled. The mere capability to
enable surveillance that examines,
uses,
and
stores
information
consitutes an interference with the
right to privacy. The systematic
collection, processing and retention
of a searchable database of personal
information, even of a relatively
routine kind, involves a significant
interference with the right to respect
for private life, and to an emerging
extent, requires protection against
unreasonable searches.
What’s the problem with
“collecting everything”?
Governments have been quick to
attempt to colour the discourse
around
mass
surveillance
by
rebranding their actions as “bulk
collection”
of
communications,
asserting that such collection in itself
is a benign measure that does not
offend privacy rights.
But what governments often do not
point out is that collection of this in-
formation is where the interference
to our privacy occurs. Mass surveil-
lance programs are premised on one
fundamental objective – collect eve-
rything. Mine it, exploit it, extrapolate
from it; look for correlations and pat-
terns, suspicious thoughts or words,
tenuous relationships or connections.
By
starting
from a posi-
tion
where
everyone is a
suspect, mass
s u r v e i l l a n c e
encourages the
establishment
of
erroneous
c o r r e l a t i o n s
and unfair sup-
positions. It en-
ables individu-
als to be linked
together
on
the basis of in-
formation that
may be no more than a coincidence –
a tube ride shared together, a website
visited at the same time, a phone con-
necting to the same cell tower – and
conclusions to be drawn about the
nature of those links.
Authorities can now have access to
information concerning the entirety
of an individual’s life: everything
they do, say, think, send, buy, imbibe,
record and obtain, everywhere they
go and with whom, from when they
wake up in the morning until when
they go to sleep. Even the strongest
of legal frameworks to govern mass
surveillance with the strictest of
independent oversight would leave
room for abuse of power and misuse
of information; for discriminatory
attitudes and structural biases; and
for human fallibility and malice.
The threat of being subject to such
abuse, discrimination or error strikes
results inchanges inhumanbehaviour,
and consequently changes the way
we act, speak, and communicate. This
is the “chilling effect” of surveillance:
the spectre of surveillance may
limit, inhibit or dissuade someone's
legitimate exercise of his or her rights.
These impacts include not only the
violation of privacy rights, but extend
to broader societal impacts on the
ability to freely form and express
ideas and opinions, to associate
and organise, and to disagree with
dominant political ideologies and
demand change to the status quo.
As the UN Special Rapporteur on
Freedom of Expression concluded in
his 2013 report, states cannot ensure
that individuals are able to freely seek
and receive information or express
themselves
without
respecting,
protecting and promoting their right
to privacy. We believe that ultimately
mass
surveillance
will
enforce
conformity, limit innovation, hamper
creation and diminish imagination.
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The
above
information
is
reprinted with kind permission
from Privacy International. Please
visit
org for further information.
© Privacy International 2017
