Search Tips
sorted by
Cards viewTable viewMap view
30 shown of 31 entities

First report: Important developments and substantive issues, March-July 2016

Body
Special Rapporteur on the right to privacy
Legal status
Non-negotiated soft law
Document type
Special Procedures' report
Year
2016
Document code
A/71/368
Date added
Aug 19, 2019
Document

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.
Body
Special Rapporteur on the right to privacy
Document type
Special Procedures' report
Topic(s)
  • Governance & Rule of Law
Person(s) affected
  • N.A.
Year
2016
Date added
Aug 19, 2019
Paragraph

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.
Body
Special Rapporteur on the right to privacy
Document type
Special Procedures' report
Topic(s)
  • Governance & Rule of Law
  • Humanitarian
Person(s) affected
  • N.A.
Year
2016
Date added
Aug 19, 2019
Paragraph

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.
Body
Special Rapporteur on the right to privacy
Document type
Special Procedures' report
Topic(s)
  • Governance & Rule of Law
Person(s) affected
  • N.A.
Year
2016
Date added
Aug 19, 2019
Paragraph

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.
Body
Special Rapporteur on the right to privacy
Document type
Special Procedures' report
Topic(s)
  • Governance & Rule of Law
Person(s) affected
  • N.A.
Year
2016
Date added
Aug 19, 2019
Paragraph

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;
Body
Special Rapporteur on the right to privacy
Document type
Special Procedures' report
Topic(s)
  • Governance & Rule of Law
Person(s) affected
  • N.A.
Year
2016
Date added
Aug 19, 2019
Paragraph

First report: Important developments and substantive issues, March-July 2016 2016, para. 21

Paragraph text
The Special Rapporteur will here outline some preliminary observations in an attempt to move the debate about smartphones beyond privacy, with the intent of eventually moving the debate back to core privacy concerns better informed by the confirmation or abnegation of societal values regarding "the bigger picture". It is the Special Rapporteur's position that other appropriate standards of behaviour need to be examined within society before a more definitive view can be taken about some of the privacy dimensions of smartphone use.
Body
Special Rapporteur on the right to privacy
Document type
Special Procedures' report
Topic(s)
  • Equality & Inclusion
  • Health
Year
2016
Date added
Aug 19, 2019
Paragraph

First report: Important developments and substantive issues, March-July 2016 2016, para. 28

Paragraph text
Despite the rulings of numerous national constitutional and regional human rights courts, the Special Rapporteur observes that there is an increased tendency for governments to promote more invasive laws for surveillance, which allow for the thinly disguised permanent mass surveillance of citizens.
Body
Special Rapporteur on the right to privacy
Document type
Special Procedures' report
Topic(s)
  • Governance & Rule of Law
Person(s) affected
  • All
Year
2016
Date added
Aug 19, 2019
Paragraph

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.
Body
Special Rapporteur on the right to privacy
Document type
Special Procedures' report
Topic(s)
  • Governance & Rule of Law
Person(s) affected
  • N.A.
Year
2016
Date added
Aug 19, 2019
Paragraph

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.
Body
Special Rapporteur on the right to privacy
Document type
Special Procedures' report
Topic(s)
  • Governance & Rule of Law
  • Health
Person(s) affected
  • N.A.
Year
2016
Date added
Aug 19, 2019
Paragraph

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.
Body
Special Rapporteur on the right to privacy
Document type
Special Procedures' report
Topic(s)
  • Governance & Rule of Law
Person(s) affected
  • N.A.
Year
2016
Date added
Aug 19, 2019
Paragraph

First report: Important developments and substantive issues, March-July 2016 2016, para. 41

Paragraph text
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).
Body
Special Rapporteur on the right to privacy
Document type
Special Procedures' report
Topic(s)
  • Governance & Rule of Law
Person(s) affected
  • N.A.
Year
2016
Date added
Aug 19, 2019
Paragraph

First report: Important developments and substantive issues, March-July 2016 2016, para. 40

Paragraph text
The National Institute for Transparency, Access to Information and Protection of Personal Data (INAI) of Mexico issued a very interesting judgment (Expediente PPD.0050/16) on 13 July 2016, where we read that: "It is pertinent to note that although the right to the protection of personal data, in accordance with its constitutional regulation, is an autonomous right to the protection of private life, there should be a broader interpretation of both concepts, while the latter means a sphere where anyone can freely develop their personality." Therefore, in general, the protection of private life includes other rights and specific guarantees for the storage of information, access to personal data, as well as the regulation on protection of private communications, names, physical and moral integrity.
Body
Special Rapporteur on the right to privacy
Document type
Special Procedures' report
Topic(s)
  • Civil & Political Rights
  • Governance & Rule of Law
  • Social & Cultural Rights
Person(s) affected
  • All
Year
2016
Date added
Aug 19, 2019
Paragraph

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.
Body
Special Rapporteur on the right to privacy
Document type
Special Procedures' report
Topic(s)
  • Governance & Rule of Law
Person(s) affected
  • N.A.
Year
2016
Date added
Aug 19, 2019
Paragraph

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.
Body
Special Rapporteur on the right to privacy
Document type
Special Procedures' report
Topic(s)
  • Governance & Rule of Law
Person(s) affected
  • N.A.
Year
2016
Date added
Aug 19, 2019
Paragraph

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;
Body
Special Rapporteur on the right to privacy
Document type
Special Procedures' report
Topic(s)
  • Governance & Rule of Law
Person(s) affected
  • N.A.
Year
2016
Date added
Aug 19, 2019
Paragraph

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;
Body
Special Rapporteur on the right to privacy
Document type
Special Procedures' report
Topic(s)
  • Governance & Rule of Law
Person(s) affected
  • N.A.
Year
2016
Date added
Aug 19, 2019
Paragraph

First report: Important developments and substantive issues, March-July 2016 2016, para. 36

Paragraph text
The first observation to be made here revolves around the issue of nationality, with the draft law continuing to make distinctions between German and non German citizens. The way this reflects reality is not clear at all. Most of the terrorist attacks carried out in Europe during the past two years and more were carried out by European Union citizens, most often by citizens of the State where the attack was carried out. If the major risk lies there, (i.e., with the citizens of one's own State) what is the true value of laws that discriminate between nationals and non nationals? Especially since, in terms of article 17 of the International Covenant on Civil and Political Rights, everybody enjoys a right to privacy irrespective of nationality or citizenship, so one must ask how useful and appropriate, never mind legal, such types of provisions may be. This anomaly was also noted by Mr. Muižnieks, who reported that: "According to the authorities, the protection afforded by Article 10 of the Basic Law does not extend to activities outside Germany and is limited to German citizens or activities taking place in Germany." This interpretation is as unacceptable as any claim in the laws of other countries that fundamental human rights protection is only restricted to its own citizens or residents. Indeed, Mr. Muižnieks reported also that: This interpretation is however disputed since the Federal Constitutional Court ruled in 1999 that the protection afforded by the Basic Law is not limited to Germany's territory and fundamental rights have to be respected, at least when information that was obtained abroad is processed in Germany. The new draft German law loses out on a precious opportunity to clarify that the right to privacy and related safeguards applies to individuals irrespective of nationality, citizenship or location, or indeed whether the surveillance is carried out inside or outside Germany.
Body
Special Rapporteur on the right to privacy
Document type
Special Procedures' report
Topic(s)
  • Civil & Political Rights
  • Equality & Inclusion
  • Governance & Rule of Law
  • Humanitarian
Person(s) affected
  • All
Year
2016
Date added
Aug 19, 2019
Paragraph

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.
Body
Special Rapporteur on the right to privacy
Document type
Special Procedures' report
Topic(s)
  • Governance & Rule of Law
Person(s) affected
  • N.A.
Year
2016
Date added
Aug 19, 2019
Paragraph

First report: Important developments and substantive issues, March-July 2016 2016, para. 32

Paragraph text
Some members of the House of Lords do understand the issue perfectly. Lord Strasburger put it quite succinctly: One feature of end-to-end encryption is that the provider cannot break it; encryption is private between the users at both ends. [Earl Howe] seems to be implying that providers can use only encryption which can be broken and therefore cannot be end to end, so the next version of the Apple iPhone would in theory become illegal. I think that there is quite a lot of work to be done on this. The Special Rapporteur thinks so too, and would suggest that much of the work that needs to be done lies in the direction of moving the Government of the United Kingdom away from the illusion that it can effectively outlaw end-to-end encryption or make it unavailable to persons inside the United Kingdom. This proposal is on the same level of illogical thinking as trying to ban knives altogether because they could occasionally be used for harm, or to ban cars because they are sometimes used as getaway vehicles. Moreover, the security risks introduced by deliberately weakened encryption are vastly disproportionate to the gains. Strasburger summarized: I want to emphasise - and anybody in the cryptography industry will spell this out - that you cannot have it both ways. Either encryption is secure, or it is not; it cannot be insecure for a small group of users and secure for everybody else. Lord Paddick pointed to an approach which would be more consistent with the case law of the European Court of Human Rights as last expressed in Zakharov v. Russia: "Instead of the power to force a company to remove encryption from a whole service or technology, alternative and more targeted powers should be used instead."9 The Special Rapporteur can, at the present stage, only wonder when common sense - never mind a deserved respect for fundamental human rights like privacy - will finally prevail in the State's debate on the subject.
Body
Special Rapporteur on the right to privacy
Document type
Special Procedures' report
Topic(s)
  • Governance & Rule of Law
Year
2016
Date added
Aug 19, 2019
Paragraph

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.
Body
Special Rapporteur on the right to privacy
Document type
Special Procedures' report
Topic(s)
  • Governance & Rule of Law
Person(s) affected
  • N.A.
Year
2016
Date added
Aug 19, 2019
Paragraph

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.
Body
Special Rapporteur on the right to privacy
Document type
Special Procedures' report
Topic(s)
  • Governance & Rule of Law
Person(s) affected
  • N.A.
Year
2016
Date added
Aug 19, 2019
Paragraph

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.
Body
Special Rapporteur on the right to privacy
Document type
Special Procedures' report
Topic(s)
  • Governance & Rule of Law
Person(s) affected
  • N.A.
Year
2016
Date added
Aug 19, 2019
Paragraph

First report: Important developments and substantive issues, March-July 2016 2016, para. 27

Paragraph text
The United Kingdom of Great Britain and Northern Ireland, where, ironically, the origins of the right to silence may be traced for well over four hundred years, has actually taken the position that national security or the suppression of crime trumps privacy or the right to silence when it comes to electronic devices. In terms of sections 49 and 53 of the Regulation of Investigatory Powers Act 2000, it is an offence to fail to disclose the key to encrypted data when requested (with a penalty of two years in prison, or five years with regard to child sex abuse cases). Therefore, not only is the smartphone a compellable witness in the United Kingdom, but if you don't provide the keys to the device you could also be looking at an additional jail sentence. The case of Apple versus the FBI was slightly different in that the accused were actually dead and there was no doubt as to their culpability, but rather that access to the phone was required to get the bigger picture in terms of facts and the preparation of the terrorist act, as well as associates and connections in what could be a national or international terrorist network. The interest that the case has raised, however, is justly deserved because it takes us to the heart of discussions about privacy, security and the right to silence. Perhaps the next step would be to organize a study at the intersection of the right to privacy and the right to silence. The Special Rapporteur will consult with the International Bar Association, European bar associations and various other stakeholders before forming a view as to whether the time is ripe for an in-depth investigation and whether recommendations for evidence-based policymaking in this field are required.
Body
Special Rapporteur on the right to privacy
Document type
Special Procedures' report
Topic(s)
  • Governance & Rule of Law
  • Violence
Person(s) affected
  • Children
Year
2016
Date added
Aug 19, 2019
Paragraph

First report: Important developments and substantive issues, March-July 2016 2016, para. 26

Paragraph text
At the present moment in time the Special Rapporteur on the right to privacy is identifying this issue of the smartphone and similar devices (including wearables and implants) as one for future discussion, possibly by or in collaboration with other Special Rapporteurs. No particular opinion or recommendation is being made by the Special Rapporteur at this preliminary juncture. At this stage, it is simply a question of identifying a subject for further investigation as a matter which impinges strongly on privacy, but is not only of interest exclusively to the right to privacy but also to other fundamental rights such as those of due process in criminal proceedings. Some might argue that the logical conclusion of Riley v. California, when applied to the right to silence as distinct from the right to privacy, would mean that in most cases the smartphone of the accused in criminal proceedings should not be a compellable witness - a position which would then also have a significant impact on the right to privacy, certainly insofar as it would be a recognition of how intimate and private the data held on the smartphone might be.
Body
Special Rapporteur on the right to privacy
Document type
Special Procedures' report
Topic(s)
  • Civil & Political Rights
  • Equality & Inclusion
  • Governance & Rule of Law
  • Health
Year
2016
Date added
Aug 19, 2019
Paragraph

First report: Important developments and substantive issues, March-July 2016 2016, para. 25

Paragraph text
The United States Supreme Court Justices in Riley v. California were primarily concerned with outlawing warrantless searches of smartphones in terms of privacy considerations inherent in the Fourth Amendment to the United States Constitution. It is relevant to point out, however, that the situation regarding cell phone security and encryption may be significantly more complex than one solely revolving around arguments of privacy and security. It may only be a matter of time before the United States Supreme Court Justices are faced with the same dilemma that would face the scores of countries around the world which have recognized the right to silence or the right to avoid self-incrimination as one of the standards of decency that a democratic society subscribes to. This is because the very characteristics of a mobile phone which make it such a special repository of personal data, as outlined in Riley v. California, also make it the most obvious tool which could totally and effectively undermine the right to silence, which has been gradually recognized in various jurisdictions since the sixteenth century and which in the United States is recognized as the Fifth Amendment. Put simply, in many jurisdictions around the world - but not all - an accused person has the right to avoid self-incrimination by remaining silent during criminal proceedings against him or her. There are very few exceptions to or qualifications of this right in places as far apart as Australia, Bangladesh, Germany, India, New Zealand, the United States … the list goes on. Yet a judicial warrant to access data held on a phone could effectively breach that right. The accused - hitherto not a compellable witness - may have the right to remain silent, but his or her phone could speak volumes about the most private of his or her thoughts, interests and actions. The accused's spouse or close family may equally be afforded the same status of not being a compellable witness in many jurisdictions. Yet most people would claim that their smartphone knows much more about them than their spouses, so is the smartphone to remain a compellable witness even with a judicial warrant required to access it? So where should logic - and logical consistency - lead us to?
Body
Special Rapporteur on the right to privacy
Document type
Special Procedures' report
Topic(s)
  • Governance & Rule of Law
Year
2016
Date added
Aug 19, 2019
Paragraph

First report: Important developments and substantive issues, March-July 2016 2016, para. 24

Paragraph text
Most important, perhaps, is the realization by the Justices of the United States Supreme Court that the contents of a cell phone are so large in quantity and intimately private in character that they go far beyond the level of privacy that would be intruded upon in a traditional search of one's home as protected by the Fourth Amendment to the United States Constitution: A cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form - unless the phone is. In this way, the Justices of the United States Supreme Court showed how the new technology embodied by smartphones has been a game shifter and that at this moment in "Time" (2014), the "Place" (the United States - and the phone located in the United States) where the personal data was to be found had changed significantly to one where portability, quantity and quality of the personal information are capable of completely altering and intensifying the privacy dimension of the personal "Space".
Body
Special Rapporteur on the right to privacy
Document type
Special Procedures' report
Topic(s)
  • Governance & Rule of Law
Year
2016
Date added
Aug 19, 2019
Paragraph

First report: Important developments and substantive issues, March-July 2016 2016, para. 23

Paragraph text
As outlined in Riley v. California: "Modern cell phones … are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy."7 The Supreme Court Justices noted correctly that: Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee's person. The term "cell phone" is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers. One of the most notable distinguishing features of modern cell phones is their immense storage capacity. Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy. More than once the United States Supreme Court Justices note that: Although the data stored on a cell phone is distinguished from physical records by quantity alone, certain types of data are also qualitatively different. An Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual's private interests or concerns - perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD. Data on a cell phone can also reveal where a person has been. There is an element of pervasiveness that characterizes cell phones but not physical records. Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cell phone, with all that it contains, who is the exception. According to one poll, nearly three-quarters of smartphone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower. The ability of the smartphone to provide a very detailed and accurate profile of its user is likewise identified by the Justices:
Body
Special Rapporteur on the right to privacy
Document type
Special Procedures' report
Topic(s)
  • Governance & Rule of Law
  • Health
Year
2016
Date added
Aug 19, 2019
Paragraph

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.
Body
Special Rapporteur on the right to privacy
Document type
Special Procedures' report
Topic(s)
  • Governance & Rule of Law
Person(s) affected
  • N.A.
Year
2016
Date added
Aug 19, 2019
Paragraph

First report: Important developments and substantive issues, March-July 2016 2016, para. 20

Paragraph text
Now that the Apple versus FBI case is no longer sub judice and, hopefully, people on all sides can think a bit more clearly and less passionately, it is respectfully submitted that since hundreds of millions of Apple smartphones have been sold globally this is a global issue and not one which is of interest solely in the United States. Likewise, the same laws which were used to try and compel Apple to help law enforcement agencies obtain access to the data in that case may be used with other manufacturers who have sold many more hundreds of millions of smartphones around the world than Apple has, especially since more and more manufacturers are building cryptographic safeguards into their products. It would appear that economies of scale mean that we are moving towards a situation where first one third and eventually half of the world's population will own and use a smartphone. Thus, as will be seen below, we are faced with a simple fact: the smartphone is a ubiquitous technology which has huge ramifications for privacy.
Body
Special Rapporteur on the right to privacy
Document type
Special Procedures' report
Topic(s)
  • Governance & Rule of Law
Year
2016
Date added
Aug 19, 2019
Paragraph

30 shown of 31 entities

30 more 300 more

  • Uwazi is developed by Human Rights Information and Documentation Systems

  •  
  • Plan International - Girls' Rights Platform - Girls' rights are human rights: Positioning girls at the heart of the international agenda
  •  
  • Database
  • Admin Login