US spy chief Clapper defends Prism and phone surveillance

[David Guyatt]

Will the NSA/GCHQ give a damn?

Mass internet surveillance threatens international law, UN report claims

Actions of intelligence agencies are corrosive of online privacy', Ben Emmerson says in response to Edward Snowden leaks

• Owen Bowcott, legal affairs correspondent
  
• The Guardian, Wednesday 15 October 2014
  
• Jump to comments (27)
  

'Bulk access technology is indiscriminately corrosive of online privacy', warns Ben Emmerson. Photograph: Sarah Lee for the Guardian

Mass surveillance of the internet by intelligence agencies is "corrosive of online privacy" and threatens to undermine international law, according to a report to the United Nations general assembly.
The critical study by Ben Emmerson QC, the UN's special rapporteur on counter-terrorism, released on Wednesday is a response to revelations by the whistleblower Edward Snowden about the extent of monitoring carried out by GCHQ in the UK and the National Security Agency (NSA) in the US.
"Bulk access technology is indiscriminately corrosive of online privacy and impinges on the very essence of the right guaranteed by [the UN's International Covenant on Civil and Political Rights]," Emmerson, a prominent human rights lawyer, concludes. The programmes, he said, "pose a direct and ongoing challenge to an established norm of international law."
Article 17 of the covenant, Emmerson points out, states that "no one shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home and correspondence, nor to unlawful attacks on his or her honour and reputation".
The 22 page report warns that the use of mass surveillance technology, through interception programs developed by the NSA and GCHQ such as Prism and Tempora, "effectively does away with the right to privacy of communications on the internet altogether".
It also highlights more intrusive methods, such as the NSA's Quantum program, which enables the agency to take "secret control over servers in key locations" and by impersonating websites "inject unauthorized remote control software into the computers and Wi-Fi-enabled devices of those who visit the clone site".
Most countries possess the technical capacity to intercept and monitor calls made on a landline or mobile telephone, enabling an individual's location to be determined, his or her movements to be tracked through cell site analysis and his or her text messages to be read and recorded, Emmerson says. An increasing number of countries also use malware systems that infiltrate individuals' computer or smartphone, to override settings and monitor its activity.
"This amounts to a systematic interference with the right to respect for the privacy of communications, and requires a correspondingly compelling justification," Emmerson maintains.
"Merely to assert without particularization that mass surveillance technology can contribute to the suppression and prosecution of acts of terrorism does not provide an adequate human rights law justification for its use. The fact that something is technically feasible, and that it may sometimes yield useful intelligence, does not by itself mean that it is either reasonable or lawful."
The argument that anything online should be considered to be in the public domain is demolished by Emmerson. "Merely using the internet as a means of private communication cannot conceivably constitute an informed waiver of the right to privacy," he states. "The internet is not a purely public space. It is composed of many layers of private as well as social and public realms."
Mass surveillance of digital content and communications data is "a serious challenge to an established norm of international law", according to the report. "The very existence of mass surveillance programmes constitutes a potentially disproportionate interference with the right to privacy.
"It is incompatible with existing concepts of privacy for states to collect all communications or metadata all the time indiscriminately. The very essence of the right to the privacy of communication is that infringements must be exceptional, and justified on a case-by-case basis."
The report refers to revelations first published in the Guardian last year about the NSA's mass collection of telecommunications data and its authorisation under a secret court order.
"The right to privacy is not," Emmerson's report acknowledges, "an absolute right. Once an individual is under suspicion and subject to formal investigation by intelligence or law enforcement agencies, that individual may be subjected to surveillance for entirely legitimate counter-terrorism and law enforcement purposes."
But he adds: "There is an urgent need for states to revise national laws regulating modern forms of surveillance to ensure that these practices are consistent with international human rights law.
"The absence of clear and up-to-date legislation creates an environment in which arbitrary interferences with the right to privacy can occur without commensurate safeguards. Explicit and detailed laws are essential for ensuring legality and proportionality in this context."
The report concludes: "The prevention and suppression of terrorism is a public interest imperative of the highest importance and may in principle form the basis of an arguable justification for mass surveillance of the internet.
"However, the technical reach of the programmes currently in operation is so wide that they could be compatible with article 17 of the covenant only if relevant States are in a position to justify as proportionate the systematic interference with the internet privacy rights of a potentially unlimited number of innocent people located in any part of the world."