The debate over personal privacy versus national security is a contentious one to be sure, and constituencies are aligned fervently on either side of the issue. Individuals want to communicate unfettered by surveillance, while governments, claiming national security priorities, wish to expand their spying and data collection capabilities.
In a recent report by Nils Muiznieks, commissioner for human rights at the Council of Europe, the issue is examined at length. The Council of Europe is comprised of 47 member states and oversees the European Court of Human Rights in Strasbourg. Notably, the membership includes Russia – a major human rights violator.
Muiznieks is the most senior human rights official in Europe, and his conclusion is that secret “massive and indiscriminate” surveillance, resulting mass data collection by intelligence services, cannot be justified to be in national security interests such as the war on terrorism. He also calls for greater transparency and stronger democratic oversight of agencies’ monitoring practices.
The report entitled The Rule of Law on the Internet in the Wider Digital World predates the recent terrorist attack by the Taliban which killed school children, and a similar tragedy in Nigeria committed by Boko Haram. Often, events like these serve to bolster the argument that even more surveillance is needed. That may be so, but the data gathering has been so pervasive and indiscriminate that it is difficult to be sympathetic to the argument in favor of massive communication monitoring.
Muiznieks report comes on the heels of a finding by the UK’s Investigatory Powers Tribunal (IPT) that the government’s handling of mass surveillance of the internet by the Government Communications Headquarters (GCHQ) is “human rights compliant”. Civil liberty organizations are planning to appeal this ruling, and Muiznieks may get involved in the matter,
“Surveillance has gone beyond the bounds of the rule of the law and democratic oversight needs to be more robust.”
In his report, Muiznieks wrote,
“In connection with the debate on the practices of intelligence and security services prompted by Edward Snowden’s revelations, it is becoming increasingly clear that secret, massive and indiscriminate surveillance programmes are not in conformity with European human rights law and cannot be justified by the fight against terrorism or other important threats to national security. Such interferences can only be accepted if they are strictly necessary and proportionate to a legitimate aim.”
Perhaps with the recent release of the US Senate’s report on CIA torture tactics in mind, Muiznieks opined that,
“’We have seen examples where there’s a clear lack of oversight of security: the first was black sites, torture and rendition. The second was the revelation about mass surveillance. I want to influence the court and its thinking. These recommendations (in the report) are my interpretation of basic human rights principles.”
He feels that his input is important as there is no case law in Internet related issues so far.
His report made many recommendations, and among them is that no state should access the data stored in another country without permission. Another is that governments should not impose upon private companies restrictions that would be in violation of that countries’ human rights obligations. As expected, his report urges states to ensure that effective democratic oversight over national security services prevails, and that security service officers are well versed in the rule of law.
Further, he joined privacy advocates in calls for the publishing of the Five Eyes treaty that authorizes intelligence sharing between the UK, US, Australia, Canada and New Zealand as a means of ensuring greater transparency. His report comes at the end of a tumultuous year for privacy issues, and offers hope that 2015 will see a turn in the tide away from intrusive surveillance and in favor of greater individual freedom in communication.