The implications of States’ surveillance of communications on the exercise of the human rights to privacy and to freedom of opinion and expression 2013, para. 63
Paragraph
Paragraph text
Governments often do not acknowledge the use of such technologies to conduct surveillance, or argue that such technologies are being legitimately employed under the ambit of existing surveillance legislation. Although it is clear that many States possess offensive intrusion software, such as Trojan technology, the legal basis for its use has not been publicly debated in any State, with the exception of Germany. In that context, the province of North Rhine-Westphalia passed legislation in 2006 authorizing the "secret access to an information technology system" (§ 5.2 no. 11, North Rhine-Westphalia Constitution Protection Act), which was understood to be technical infiltration which is effected either by installing a spy programme or taking advantage of the security loopholes of the system. The German Federal Constitutional Court quashed the law in February 2008, ruling that such measures would only be in conformity with human rights if they were subject to judicial authorization and review, and occurred only in situations where there might be a concrete danger to a predominantly important legal interest.
Legal status
Non-negotiated soft law
Body
Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
Document type
Special Procedures' report
Means of adoption
N.A.
Topic(s)
Governance & Rule of Law
Person(s) affected
N.A.
Year
2013
Paragraph type
Other
Reference
SR Freedom of Opinion, Report to the HRC (2013), A/HRC/23/40, para. 63.