International Principles on the Application of Human Rights to Communications Surveillance are a set of principles for human rights activists to evaluate whether surveillance laws and practices in their countries are consistent with humans rights. The principles were published in September last year.
As technologies that facilitate State surveillance of communications advance, States are failing to ensure that laws, regulations, activities, powers, and authorities related to Communications Surveillance adhere to international human rights law and standards. This document attempts to clarify how international human rights law applies in the current digital environment, particularly in light of the increase in and changes to Communications Surveillance technologies and techniques. These principles can provide civil society groups, industry, States, and others with a framework to evaluate whether current or proposed surveillance laws and practices are consistent with human rights. (Source: Necessary and Proportionate)
LEGALITY: Limits on the right to privacy must be set out clearly and precisely in laws, and should be regularly reviewed to make sure privacy protections keep up with rapid technological changes.
LEGITIMATE AIM: Communications surveillance should only be permitted in pursuit of the most important state objectives.
NECESSITY: The State has the obligation to prove that its communications surveillance activities are necessary to achieving a legitimate objective.
ADEQUACY: A communications surveillance mechanism must be effective in achieving its legitimate objective.
PROPORTIONALITY: Communications surveillance should be regarded as a highly intrusive act that interferes with the rights to privacy and freedom of opinion and expression, threatening the foundations of a democratic society. Proportionate communications surveillance will typically require prior authorization from a competent judicial authority.
COMPETENT JUDICIAL AUTHORITY: Determinations related to communications surveillance must be made by a competent judicial authority that is impartial and independent.
DUE PROCESS: Due process requires that any interference with human rights is governed by lawful procedures which are publicly available and applied consistently in a fair and public hearing.
USER NOTIFICATION: Individuals should be notified of a decision authorizing surveillance of their communications. Except when a competent judicial authority finds that notice will harm an investigation, individuals should be provided an opportunity to challenge such surveillance before it occurs.
TRANSPARENCY: The government has an obligation to make enough information publicly available so that the general public can understand the scope and nature of its surveillance activities. The government should not generally prevent service providers from publishing details on the scope and nature of their own surveillance-related dealings with State.
PUBLIC OVERSIGHT: States should establish independent oversight mechanisms to ensure transparency and accountability of communications surveillance. Oversight mechanisms should have the authority to access all potentially relevant information about State actions.
INTEGRITY OF COMMUNICATIONS AND SYSTEMS: Service providers or hardware or software vendors should not be compelled to build surveillance capabilities or backdoors into their systems or to collect or retain particular information purely for State surveillance purposes.
SAFEGUARDS FOR INTERNATIONAL COOPERATION: On occasion, states may seek assistance from foreign service providers to conduct surveillance. This must be governed by clear and public agreements that ensure the most privacy-protective standard applicable is relied upon in each instance.
SAFEGUARDS AGAINST ILLEGITIMATE ACCESS: There should be civil and criminal penalties imposed on any party responsible for illegal electronic surveillance and those affected by surveillance must have access to legal mechanisms necessary for effective redress. Strong protection should also be afforded to whistleblowers who expose surveillance activities that threaten human rights.
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