The reality of the modern world is that governments – both of our own countries, and of foreign states – have greater capabilities to carry out invasive surveillance of citizens, no matter where they reside or what flag they pledge to. And caught in the cross-fire of the expanding surveillance state is freedom of expression, which is underpinned by the right to privacy.
For a long time there have been legitimate fears of a pervasive surveillance state, and those fears continue to be confirmed by the Edward Snowden leaks, which week after week provide a progressively more terrifying glimpse into international spying regimes. It is now clear that the US and UK governments perceive broad-scale and real-time surveillance, once the reserve of repressive regimes, to be a legitimate tool of democratic states.
Without a doubt this issue will be front and center next week in Bali, as civil society, government officials, and experts from the security and technology sector gather for the Internet Governance Forum 2013 (IGF), just as it was at the UN Human Rights Council meeting in Geneva in mid-September.
So what will be done? Will leaders in this field and members of our governments begin to address this pressing issue? Will rhetorical commitments be translated into decisive action? If not now – when this issue is still so fresh in our minds and offensive to the general public – then when?
The pervasive surveillance state
Under the guise of national security, privacy is gradually being dismantled by laws and technologies that enable government intrusion into our emails, internet activities, phone calls, movements, interactions and relationships. We are told by our governments that surveillance is there to make us safer. Yet there is little evidence that forfeiting our privacy gains us greater security. Trumped-up claims of averted terrorist attacks mean nothing, and particularly don't overcome arguments that the same "gains" in security could have been achieved through other, less invasive, means. Moreover, the idea that we must choose between privacy and security is a false dichotomy – there is no reason why we can't have both. In fact, the two can be mutually reinforcing, not only because surveillance breeds mistrust in government and thus might undermine security, but also because, on a more practical level, if we preserve the integrity of networks and infrastructure to safeguard privacy, that will also reduce the vulnerability that might make us insecure. The trend toward surveillance puts every single individual's fundamental right to privacy at risk.
"The possibility that mass surveillance impedes free speech is not just a hypothetical scenario, it is a frightening reality."
While the public debates what is being disingenuously framed as the balance between “privacy” and “national security”, another fundamental right also hangs in the balance – freedom of expression. While the right to privacy is an important right itself, it is also the enduring link and enabler of other human rights. When the most confidential and secret parts of an individual's life are exposed to the possibility of intrusion, the freedom to express oneself cannot be genuinely enjoyed. Rather, individuals begin to be afraid that their thoughts, words and relationships will be the subject of interception and analysis. Without safeguards protecting private communications from the intrusion of state actors, the important democratic tenets of individual autonomy, free speech and political participation cannot be realised.
The possibility that mass surveillance impedes free speech is not just a hypothetical scenario, it is a frightening reality. Just in the past few months, we've seen state surveillance have a real effect on speech, as websites have decided to close down and secure email providers shutter their services because of the threat posed by pervasive NSA spying.
The threat of surveillance is, in short, hampering our individual expression, our ability to say what we want to say and act how we wish to act. This widespread and invasive surveillance is about instilling fear; fear that our thoughts, words and relationships will be the subject of government scrutiny; fear that the content we access on the internet will be exposed. This fear can cause us to withdraw from public spaces, censor our communications, and refrain from accessing certain services.
Free and private communications – both online and off – are an essential element of a vibrant, participatory and critical democracy. As such, they are protected in international human rights law, including Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights, a binding treaty, which has reached almost universal ratification.
The world stepping up
So while we've seen public outcry over NSA and GCHQ spying, the real question will be whether states have the appetite to uphold these universally protected human rights, enshrined in international law, and fight back against bullying governments.
A significant step was Brazilian President Dilma Rousseff's fiery speech before the United Nation General Assembly, where she called US actions “a breach of international law” and said "I cannot but defend, in an uncompromising fashion, the right to privacy of individuals and the sovereignty of my country.”
We need more leaders from countries around the world to stand up in this manner, but the countries leading the trend in indiscriminate global surveillance – the US and UK – often hold the balance of power when it comes to international action. Therefore, in order to achieve change, civil society needs to work to shift power dynamics and create consensus among as many governments as possible through a unified set of principles that provide a framework for international surveillance law that protects states while respecting human rights.
"For too long governments have exploited advances in surveillance technology that have far outpaced national laws regulating their use."
A starting point would be the adoption of the International Principles on the Application of Human Rights to Communications Surveillance, which were unveiled last month at the 24th Session of the United Nations Human Rights Council. The 13 Principles set out standards that interpret states' human rights obligations in light of new technologies and surveillance capabilities and for the first time set out an evaluative framework for assessing surveillance practices in the context of international human rights law.
While the principles were developed by human rights organisations and endorsed by 260 civil society groups, the event at the UN was hosted by the governments of Germany, Norway, Austria, Hungary, Liechtenstein and Switzerland – signalling their understanding of how urgently an international framework is needed when it comes to surveillance law.
A chance at the IGF
For too long governments have exploited advances in surveillance technology that have far outpaced national laws regulating their use. For example, in Pakistan the government relies on a piece of legislation promulgated in 1885, The Telegraph Act, to legitimize taking control of telecommunications infrastructure for the purpose of conducting surveillance. National laws, in democracies and repressive regimes alike, have failed to keep pace with new state capabilities, and due process protections have been rolled back in the name of national security, eradicating any semblance of privacy rights online.
As folks roll into Bali next week, the timing could not be more perfect to face down this degrading trend. With surveillance being one of the most pressing human rights issues today, and with the recent release of the 13 Principles and the report of the UN Special Rapporteur on free expression and surveillance, the IGF provides a ripe venue for these long-standing difficulties to be finally addressed.
While governments absolutely have a right to protect their citizens, they also must protect the very human rights that allow us to freely think and live without fear of intrusion. The balance between privacy and security is essential, but the scales have tipped too far. It's time that our governments did something about it, but the push needs to come from us. Bali is a good place to start.
Carly Nyst is the Head of International Advocacy at Privacy International.