Reports and Publications

Other Publications

UN Human Rights Council study condemns erosion of privacy by state counter-terrorism measures

The expanding array of counter-terrorism measures adopted by countries around the world in the wake of the 9/11 attacks on the United States are eroding the privacy and related rights of citizens, according to a special report to the United Nations Human Rights Council.

But the report by Martin Scheinin, the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, also applauded several Canadian measures that help strengthen privacy safeguards. Indeed, like the Office of the Privacy Commissioner of Canada, he argued that privacy rights should only be restricted by the “requirements of legitimate aim, necessity and proportionality.”

The 35-page report by the professor of public international law at the European University Institute in Florence noted that many states have dramatically expanded their powers in the name of national security and public safety. Those powers include overt and covert surveillance and the interception of communications; racial and other forms of profiling; the development and use of secret watch lists, and the authority to stop and search individuals, particularly at borders.

The increasing tendency of countries with acceptable privacy regimes to share personal information with states or private organizations that lack appropriate safeguards is another area of concern highlighted in the report.

By violating privacy rights, the Special Rapporteur argues, such government actions have also diminished other rights, including the right to due process and freedom of movement. They have, moreover, had a chilling effect on freedoms of association and expression.

Necessary and proportionate

Scheinin’s report, to be discussed at a March session of the Human Rights Council, recognizes that privacy and other fundamental rights may be limited by certain legitimate state requirements, including the duty to protect the safety of citizens.

“However,” he noted, “countering terrorism is not a trump card which automatically legitimates any interference with the right to privacy. Every instance of interference needs to be subject to critical assessment.”

States must show, for instance, that a security measure is necessary and that the impact on privacy is proportionate – some of the very tests applied by the Office of the Privacy Commissioner of Canada in analysing the appropriateness of proposed security measures in Canada.

The report echoes other concerns that have been expressed for some years by the Office. For example, it notes that the capacity of computers to capture and analyse practically limitless amounts of data has accelerated the expansion of state powers that could, in turn, infringe the privacy of individuals.

In particular, technology has increased the danger that personal information can be used or shared illegally. This threat is even more serious when the personal information comprises unique and irreplaceable biometric identifiers such as fingerprints, DNA and iris scans.

Canadian initiatives lauded

The report highlights several Canadian initiatives and legal findings that serve to enhance privacy protections. For example, it praises the practice in which data-protection authorities review in advance the potential impact of proposed security measures on privacy. Privacy Impact Assessments, or PIAs, are a key element of Canada’s privacy-protection regime.

It also refers to the Privacy Commissioner’s audit of Canada’s Passenger Protect Program, the secret government watch list containing the names of people who are deemed to be too dangerous to fly. The audit results are reported in the Office’s 2008-2009 annual report to Parliament on the Privacy Act.

The report concludes with 15 recommendations aimed variously at legislative assemblies, governments and the Human Rights Council.

For instance, it calls for stronger safeguards on information sharing between governments, tougher regulations to restrict state access to information held by third parties (such as Internet service providers), and measures to prevent the use of anti-terrorism powers for other purposes.

The report also recommends against the development and use of data-mining techniques for counter-terrorism purposes. And it calls on governments to build due-process safeguards, including the right to redress, into programs that create watch lists or profiles out of surveillance data.

The Special Rapporteur’s full English-language report can be found on the website of the UN Human Rights Council at http://www2.ohchr.org/english/bodies/hrcouncil/docs/13session/A-HRC-13-37.pdf.