South Asians for Human Rights

Promoting Democracy, Upholding Human Rights

KARACHI: A United Nations expert on Monday expressed concern over increasing risks to privacy emanating from state surveillance and lack of digital security, including Pakistan’s “vague criminal prohibitions” on encryption.

In a report prepared for the 39th session of the UN Human Rights Council — that began on Monday and will end on Sept 28 — the special rapporteur wrote that many governments, including in Pakistan, Russia, China, Iran and Turkey, were neglecting or ignoring their duty to protect online encryption that helped ensure freedom of expression and privacy.

The report highlighted that the right to privacy was a fundamental human right that was recognised in Article 12 of the Universal Declaration of Human Rights, Article 17 of the International Covenant on Civil and Political Rights and in other international and regional instruments.

However, it noted that many governments had adopted laws or proposed legislation that increased their surveillance powers, often in ways that fell short of applicable international human rights standards.

The report that addressed some of the pressing challenges that the right to privacy faced globally in the digital age, observed that many states had adopted criminal laws banning the use and dissemination of encryption technologies. In Pakistan, the Prevention of Electronic Crimes Act, 2016 (Peca) established “vague criminal prohibitions” on the supply of computer software and the programming of computer systems, which could be broadly interpreted to crack down on the use of encryption tools and networks that provide anonymity (such as Tor and VPNs).

“A state’s obligations to respect and ensure the rights to freedom of opinion and expression and to privacy include the responsibility to protect encryption,” the report said.

Earlier in 2015, the UN had criticised the vagueness of Peca’s provisions that could have a chilling effect on media activities in Pakistan, and would pose a serious threat to the ability of journalists to work freely, especially investigative journalists, whose work precisely consists of accessing information they are not authorised to access. These provisions could also seriously deter whistleblowers who, by definition, reveal information of general interest by transmitting data they are not authorised to access, copy or transmit, it had said.

Encryption and anonymity tools are widely used around the world, including by human rights defenders, civil society, journalists, whistleblowers and political dissidents facing persecution and harassment. The UN report warned that weakening them jeopardised the privacy of all users and exposes them to unlawful interferences not only by states, but also by non-state actors, including criminal networks.

The government of Pakistan ratified the International Covenant on Civil and Political Rights on June 23, 2010. The Covenant, in particular Article 19, protects everyone from interferences with the maintaining of opinions and protects the right to seek, receive, and impart information and ideas of all kinds, regardless of frontiers and through any media. Any restriction, the UN pointed out, on the right to freedom of expression should be narrowly defined and clearly provided by law and be necessary and proportionate to achieve one or more of the legitimate objectives of protecting the rights or reputations of others, national security, public order, or public health and morals, as provided in Article 19(3) of the Covenant.

Surveillance for security

The report regretted that many states continued to engage in secret mass surveillance and communications interception, collecting, storing and analysing the data of all users relating to a broad range of means of communication (for example, emails, telephone and video calls, text messages and websites visited). While some states claimed that such indiscriminate mass surveillance is necessary to protect national security, this practice was “not permissible under international human rights law, as an individualised necessity and proportionality analysis would not be possible in the context of such measures,” it noted.

Quoting the European Court of Human Rights, the report stated: “A system of secret surveillance set up to protect national security may undermine or even destroy democracy under the cloak of defending it.”

In its report submitted to the HCR session, the UN stressed that there was an urgent need for states to fully implement their obligations to respect the right to privacy, as well as their duty to protect the right to privacy, including vis-à-vis corporate abuses. To accomplish that objective, it added, states needed to establish an appropriate legal and policy framework, including adequate privacy protection legislation and regulation.

It called for establishing independent authorities with powers to monitor state and private sector data privacy practices, investigate abuses, receive complaints from individuals and organisations, and issue fines and other effective penalties for unlawful processing of personal data by private and public bodies. It recommended that states pass laws spelling out permissible restrictions on encryption and anonymity.

The UN also asked the countries to ensure, through appropriate legislation and other means that any interference with the right to privacy including by communications surveillance and intelligence-sharing, complies with international human rights law, including the principles of legality, legitimate aim, necessity and proportionality, regardless of the nationality or location of the individuals affected, and clarify that authorisation of surveillance measures requires reasonable suspicion that a particular individual has committed or is committing a criminal offence or is engaged in acts amounting to a specific threat to national security.

Published in Dawn, September 11th, 2018