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First report: Important developments and substantive issues, March-July 2016 2016, para. 34
- Paragraph text
- The democratic oversight of intelligence services in Germany remains a cause for concern. The Special Rapporteur shares the concerns of Nils Muižnieks, the Commissioner for Human Rights of the Council of Europe, and notes that his findings of October 2015 have not been contradicted. In particular, that: Current challenges relating to effective oversight of intelligence and security services in Germany include the lack of resources and expertise, the scope of the oversight of telecommunications, problems of coordination, as well as the absence of effective remedies for persons affected by surveillance of their telecommunications. The Commissioner is particularly concerned by the lack of resources and technical expertise of the oversight bodies and their secretariat. In this respect, the ratio of the number of overseers to the number of those subject to oversight is especially telling: two bodies of 13 members, supported by a small secretariat, are responsible for the oversight of activities involving, for the largest agency (the BND), a staff of about 6,000. It is the Special Rapporteur's intention to follow up such concerns in various forums, including IIOF2016 and, at the appropriate moment, directly with the Government of Germany.
- Organismo
- Special Rapporteur on the right to privacy
- Tipo de documento
- Special Procedures' report
- Temas
- Governance & Rule of Law
- Personas afectadas
- N.A.
- Año
- 2016
- Fecha de adición
- 19 de ago. de 2019
Párrafo
First report: Important developments and substantive issues, March-July 2016 2016, para. 44
- Paragraph text
- The present report is constrained by the imposed arbitrary word limit and has left out commentary on at least a dozen areas on which the mandate holder has worked. These areas will hopefully be developed further in future thematic and generic reports.
- Organismo
- Special Rapporteur on the right to privacy
- Tipo de documento
- Special Procedures' report
- Temas
- Governance & Rule of Law
- Humanitarian
- Personas afectadas
- N.A.
- Año
- 2016
- Fecha de adición
- 19 de ago. de 2019
Párrafo
First report: Important developments and substantive issues, March-July 2016 2016, para. 39
- Paragraph text
- While the Special Rapporteur can understand the anxiety induced by the recent spate of attacks in Germany, he continues to look to that country for leadership in the field of privacy and data protection and extends an offer, as in the case of the United Kingdom, to work with the Special Rapporteur to produce a new law and an adequate oversight resource regime which would serve as an example of best practice globally.
- Organismo
- Special Rapporteur on the right to privacy
- Tipo de documento
- Special Procedures' report
- Temas
- Governance & Rule of Law
- Personas afectadas
- N.A.
- Año
- 2016
- Fecha de adición
- 19 de ago. de 2019
Párrafo
First report: Important developments and substantive issues, March-July 2016 2016, para. 35
- Paragraph text
- On 28 June 2016, the Government of Germany signed off on a draft law on the Federal Intelligence Service (the Bundesnachrichtendienst, or BND) that amended several existing laws containing provisions on the surveillance of non-German citizens outside of Germany. On 8 July 2016, the draft law passed its first reading in Parliament. It is expected that two remaining readings of the draft law, including the final vote, could take place as early as the fourth quarter of 2016.
- Organismo
- Special Rapporteur on the right to privacy
- Tipo de documento
- Special Procedures' report
- Temas
- Governance & Rule of Law
- Personas afectadas
- N.A.
- Año
- 2016
- Fecha de adición
- 19 de ago. de 2019
Párrafo
First report: Important developments and substantive issues, March-July 2016 2016, para. 37b
- Paragraph text
- [Furthermore, the draft German law raises a whole plethora of other concerns:] Mass surveillance: mass and targeted surveillance of extraterritorial communications between non-German citizens would be effectively authorized in cases where the communication interception is carried out in Germany. While targeted surveillance in line with the criteria outlined in Zakharov v. Russia is of less concern, mass surveillance remains a cause for grave concern and prima facie runs counter to the standards established in European law;
- Organismo
- Special Rapporteur on the right to privacy
- Tipo de documento
- Special Procedures' report
- Temas
- Governance & Rule of Law
- Personas afectadas
- N.A.
- Año
- 2016
- Fecha de adición
- 19 de ago. de 2019
Párrafo
First report: Important developments and substantive issues, March-July 2016 2016, para. 45
- Paragraph text
- While broadly satisfied with the collaboration to date, the Special Rapporteur recommends that more governments engage with the mandate and, as other governments have done during the first year of activity, come forward to consult on draft privacy laws and related areas such as surveillance when these are still at an early stage. Furthermore, the Special Rapporteur strongly encourages and appreciates participation in, and facilitation of, initiatives organized by the mandate holder, such as IIOF2016 or informal country visits or various workshop conferences.
- Organismo
- Special Rapporteur on the right to privacy
- Tipo de documento
- Special Procedures' report
- Temas
- Governance & Rule of Law
- Personas afectadas
- N.A.
- Año
- 2016
- Fecha de adición
- 19 de ago. de 2019
Párrafo
First report: Important developments and substantive issues, March-July 2016 2016, para. 43
- Paragraph text
- Furthermore, the Special Rapporteur has created structures for further investigation and consultation by setting up five Working Parties, one each for the Thematic Action Streams identified in the first set of five priorities: Big Data and Open Data; Security and Surveillance; Health Data; Personal data processed by corporations; and "A better understanding of Privacy". These will provide the basis for thematic reports, which are expected to start being presented in 2017-2018. This methodology has permitted the Special Rapporteur to partly overcome resource constraints by tapping into a global pool of experts prepared to provide their domain expertise on an unpaid volunteer basis. The Special Rapporteur will, however, continue to seek extramural funding and welcomes all forms of assistance to carry out his mandate properly.
- Organismo
- Special Rapporteur on the right to privacy
- Tipo de documento
- Special Procedures' report
- Temas
- Governance & Rule of Law
- Health
- Personas afectadas
- N.A.
- Año
- 2016
- Fecha de adición
- 19 de ago. de 2019
Párrafo
First report: Important developments and substantive issues, March-July 2016 2016, para. 42
- Paragraph text
- The Special Rapporteur has launched a system of structured consultations around the world. Civil society, individuals, governments, corporations and other stakeholders have registered their interest in various privacy-related topics by writing to the Special Rapporteur and/or requesting meetings, most of which were granted. These meetings have enabled the Special Rapporteur to construct lists of stakeholders in various sectors and to use these lists to invite stakeholders to meetings around the world. Structured consultations are often held behind closed doors (at the behest of stakeholders) but can include a mix of invitees and people who write in to request to attend a publicized event.
- Organismo
- Special Rapporteur on the right to privacy
- Tipo de documento
- Special Procedures' report
- Temas
- Governance & Rule of Law
- Personas afectadas
- N.A.
- Año
- 2016
- Fecha de adición
- 19 de ago. de 2019
Párrafo
First report: Important developments and substantive issues, March-July 2016 2016, para. 41
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- In the first full year of office, the Special Rapporteur has visited 14 countries during 20 trips undertaken for the mandate holder's business. These have included visits to countries as geographically far apart as Australia, Brazil, New Zealand and the United States, as well as 10 European States. Although technically speaking these were "informal" country visits, on many occasions they included the full array of engagements carried out during traditional official visits of the Special Rapporteur, including meetings with ministers, ministry officials, intelligence services, oversight agencies, data protection commissioners, law enforcement, civil society and leading corporations. In an overwhelming number of cases, the Special Rapporteur was received in a very positive manner. The next 12 months will also include at least two and possibly three official country visits, all tentatively scheduled, one each on three different continents (Africa, Asia and Latin America).
- Organismo
- Special Rapporteur on the right to privacy
- Tipo de documento
- Special Procedures' report
- Temas
- Governance & Rule of Law
- Personas afectadas
- N.A.
- Año
- 2016
- Fecha de adición
- 19 de ago. de 2019
Párrafo
First report: Important developments and substantive issues, March-July 2016 2016, para. 38
- Paragraph text
- In the light of the above, the new draft German law prima facie suggests that the German authorities have not learned anything from the October 2015 report by Mr. Muižnieks. Instead of providing the Special Rapporteur with a model law which can be used as an example of good practice around the world, the Government of Germany has come up with something which is worse than disappointing. With all its many defects, the United Kingdom draft Investigatory Powers Bill at least attempted to partly rectify the weak oversight regime previously criticized by the Special Rapporteur and others. While far from perfect, the new proposed oversight regime in the United Kingdom would appear to be an improvement over the previous situation. Not so in Germany which, unless it pulls back from the brink and radically changes course, promises to take over the position hitherto held by the United Kingdom as the country with the weakest oversight regime in the western world in proportion to the size of its intelligence services.
- Organismo
- Special Rapporteur on the right to privacy
- Tipo de documento
- Special Procedures' report
- Temas
- Governance & Rule of Law
- Personas afectadas
- N.A.
- Año
- 2016
- Fecha de adición
- 19 de ago. de 2019
Párrafo
First report: Important developments and substantive issues, March-July 2016 2016, para. 37d
- Paragraph text
- The level of resourcing of oversight of the proposed mass surveillance under the draft law is hopelessly inadequate and of the wrong type. The new law envisages a three-member committee that is only required to meet four times a year and which may not have sufficient staff or resources to oversee mass surveillance operations that are, by their very definition, extensive in scope. This leaves the Special Rapporteur in exactly the same zone of concern as that expressed by Mr. Muižnieks. Moreover, given that the appointment and composition of the membership comes from the executive does nothing to strengthen the impression of independent oversight.
- Organismo
- Special Rapporteur on the right to privacy
- Tipo de documento
- Special Procedures' report
- Temas
- Governance & Rule of Law
- Personas afectadas
- N.A.
- Año
- 2016
- Fecha de adición
- 19 de ago. de 2019
Párrafo
First report: Important developments and substantive issues, March-July 2016 2016, para. 37c
- Paragraph text
- [Furthermore, the draft German law raises a whole plethora of other concerns:] Independent oversight: the new law contains no adequate independent judicial oversight;
- Organismo
- Special Rapporteur on the right to privacy
- Tipo de documento
- Special Procedures' report
- Temas
- Governance & Rule of Law
- Personas afectadas
- N.A.
- Año
- 2016
- Fecha de adición
- 19 de ago. de 2019
Párrafo
First report: Important developments and substantive issues, March-July 2016 2016, para. 37a
- Paragraph text
- [Furthermore, the draft German law raises a whole plethora of other concerns:] Purpose specification: the conditions for the collection and processing of data are vague and too broad;
- Organismo
- Special Rapporteur on the right to privacy
- Tipo de documento
- Special Procedures' report
- Temas
- Governance & Rule of Law
- Personas afectadas
- N.A.
- Año
- 2016
- Fecha de adición
- 19 de ago. de 2019
Párrafo
First report: Important developments and substantive issues, March-July 2016 2016, para. 33
- Paragraph text
- Germany has, for decades, provided an excellent example in pioneering privacy protection in some areas. In April 2016, the Constitutional Court of Germany kept true to this tradition when it ruled that parts of a law ("BKA-Gesetz") granting surveillance powers to federal police were unconstitutional because they did not have sufficient safeguards to ensure a balance between the rights of the individual to privacy and the interests of the State in investigating potential crime. Certain powers, such as the ability to conduct surveillance through recorded conversations or photographs, to carry out wiretaps or to remotely search computers, did not have adequate restrictions, including the possibility of judicial review, to guarantee that intrusions on the privacy of German citizens would be justified and proportionate, the court found.
- Organismo
- Special Rapporteur on the right to privacy
- Tipo de documento
- Special Procedures' report
- Temas
- Governance & Rule of Law
- Personas afectadas
- N.A.
- Año
- 2016
- Fecha de adición
- 19 de ago. de 2019
Párrafo
First report: Important developments and substantive issues, March-July 2016 2016, para. 31
- Paragraph text
- Statements such as these suggest one of four options: (a) the Minister is being badly briefed; (b) the Minister is being briefed by people who do not understand how encryption really works; (c) the Minister does not understand the brief; or (d) the Minister is deliberately misrepresenting the situation to the House of Lords. The Special Rapporteur does not wish to believe that this is a case of deliberate misrepresentation and therefore appeals to the Noble Lord and all his fellow members of the House of Lords to get on top of a few simple facts. Perhaps if the members of the House of Lords were to understand the arguments presented by the Government of the Netherlands on 4 January 2016, they would then understand why attempts to legislate weakened encryption into being are a bad idea and particularly daft in practice. They would understand that, far from being "entirely sensible", such proposals are entirely nonsensical. They would also understand why statements such as "Law enforcement and the intelligence agencies must retain the ability to require telecommunications operators to remove encryption in limited circumstances" are illusory and a far cry from reality. Law enforcement and intelligence agencies in most cases emphatically do not have the ability to require telecommunications operators to remove encryption - or else they may require them to do so until they are blue in the face - for the simple reason that in most cases the telecommunications operators do not have that ability in the first place. If the Parliament of the United Kingdom were to be misguided enough to approve such a particularly nonsensical piece of legislation, it would only require a very small effort for an individual to download any number of encryption algorithms/encrypted communications programmes produced outside either the United Kingdom or the United States, but freely available on the Internet, and then use such programmes to communicate with others intent on causing harm inside the United Kingdom. There is nothing a telecommunications operator can do in such circumstances and nothing more a signals intelligence agency can do than try to crack the code.
- Organismo
- Special Rapporteur on the right to privacy
- Tipo de documento
- Special Procedures' report
- Temas
- Governance & Rule of Law
- Personas afectadas
- N.A.
- Año
- 2016
- Fecha de adición
- 19 de ago. de 2019
Párrafo
First report: Important developments and substantive issues, March-July 2016 2016, para. 30
- Paragraph text
- Never mind that the Investigatory Powers Bill should never have been proposed in its current form nor advanced to approval by the House of Commons in the first place. The discussion in the House of Lords to date has not been encouraging. Earl Howe, Minister of State for Defence and Deputy Leader of the House of Lords, on 13 July 2016, said: It may be entirely sensible for the government to work with [communication service providers] to determine whether it would be reasonably practicable to take steps to develop and maintain a technical capability to remove encryption that has been applied to communications or data. Law enforcement and the intelligence agencies must retain the ability to require telecommunications operators to remove encryption in limited circumstances.
- Organismo
- Special Rapporteur on the right to privacy
- Tipo de documento
- Special Procedures' report
- Temas
- Governance & Rule of Law
- Personas afectadas
- N.A.
- Año
- 2016
- Fecha de adición
- 19 de ago. de 2019
Párrafo
First report: Important developments and substantive issues, March-July 2016 2016, para. 29
- Paragraph text
- Moves in this direction continue with the passage of the third reading of the Investigatory Powers Bill in the House of Commons of the United Kingdom. The Bill is scheduled to continue to be considered at the Committee stage in the House of Lords in September 2016. The Special Rapporteur must assume that readers are also familiar with the criticism he made of the Bill in his report of 9 March 2016. The part of the Bill which deals with mass surveillance and bulk hacking continues to be under international scrutiny. The Court of Justice of the European Union is set to rule on the matter following an opinion expressed by the Advocate General of the Court, on 19 July 2016, that bulk processing is only legal in cases of serious crime, which is a far narrower use than that permissible under the Bill. The Bill remains a privacy minefield, a thorough analysis of which would require 10 times the 10,300 word limit that the present report must respect, but the battle is happily being valiantly fought by Ministers of Parliament, Liberty, the Law Society, the Open Rights Group and Privacy International. It can only be hoped that the Government of the United Kingdom presses the pause button, listens carefully to what both the European Court of Human Rights and the Court of Justice have to say about surveillance and lets sanity prevail. It would also do well to listen to some members of its own House of Lords. Lord Paddick, a former senior police officer, has lambasted the Bill's provisions dealing with Internet connection records, saying: "Internet connection records - the only virgin territory in the Bill - are going to intrude into innocent people's privacy." He later argues that the catch-all nature of Internet connection records is disproportionate given the warrantless access the Bill affords to police of this personal data on all Internet users in the United Kingdom.
- Organismo
- Special Rapporteur on the right to privacy
- Tipo de documento
- Special Procedures' report
- Temas
- Governance & Rule of Law
- Personas afectadas
- N.A.
- Año
- 2016
- Fecha de adición
- 19 de ago. de 2019
Párrafo
First report: Important developments and substantive issues, March-July 2016 2016, para. 22
- Paragraph text
- Like many other fundamental human rights, privacy is a dynamic right, not a static right. An expectation of and a preference for privacy has existed for thousands of years, but this does not mean that the degree of protection of the right or the understanding of the boundaries of the right have remained unchanged as the direction has moved to greater protection. Privacy has developed over time, and much evidence has been identified prior to the creation of the Special Rapporteur mandate and the appointment of the incumbent which shows how the understanding of privacy and the exercise of the right has varied across the dimensions of "Time, Place and Space". Contrary to what some may think, recognizing this reality does nothing to undermine the existence of the right nor its universality. Instead, it makes one reflect about the complex set of values that underpin the right and the way that our understanding of the right needs to change as circumstances change in order for the underlying values to continue to be protected and indeed, as much as possible, have their protection increased. The advent and applications of new technologies such as the smartphone is one typical example of how we need to update our understanding of privacy. As United States Supreme Court Justice Samuel Alito put it, in the landmark United States case of Riley v. California in 2014: We should not mechanically apply the rule used in the predigital era to the search of a cell phone. Many cell phones now in use are capable of storing and accessing a quantity of information, some highly personal, that no person would ever have had on his person in hard-copy form. In this, Alito is concurring with the majority opinion as expressed by Chief Justice John Roberts that: Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans "the privacies of life". The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Needless to say, it is not just Americans who wittingly or unwittingly surrender "the privacies of life" to their cell phones. Indeed, every single person on earth who carries a smartphone has entrusted to their most used portable device the privacies of their life irrespective of their creed, colour, ethnic origin, gender, nationality or geographical location. Which is why many of the observations made in Riley v. California are also of global importance. The Special Rapporteur will here quote extensively from this United States case since it outlines some of the arguments which should be considered next in the overall context of the dispute between Apple and the FBI wherever such issues are raised across the globe.
- Organismo
- Special Rapporteur on the right to privacy
- Tipo de documento
- Special Procedures' report
- Temas
- Governance & Rule of Law
- Personas afectadas
- N.A.
- Año
- 2016
- Fecha de adición
- 19 de ago. de 2019
Párrafo
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