In the wake of ongoing surveillance revelations, the Media Action Grassroots Network joins hundreds of organizations from around the world that signed onto the International Principles on the Application of Human Rights to Communications Surveillance. With its endorsement, MAG-Net takes a stance towards halting practices that threaten communities of color and other vulnerable groups who are subject to targeted surveillance by law enforcement and national security agents.
The Principles is civil society’s attempt to proactively engage with policy makers and other stakeholders in protecting the fundamental rights of all people. Meaning those who pray in mosques, who call loved ones in their home countries, and who get stopped and frisked in the streets. More than intruding on our privacy, massive surveillance discriminates us, disrupts our lifestyles, misconstrues our beliefs and associations, and violates our right to free speech. The principles are a keen reminder that no law enforcement or national security practice should compromise our fundamental freedoms.
In drafting the principles, advocacy organizations considered laws in the United States like the U.S. Constitution’s Fourth Amendment protection against unreasonable search and seizure, and international instruments that are binding in the U.S. like the International Covenant on Civil and Political Rights. The coalition also analyzed U.S. Supreme Court cases like United States v. Jones, whose concurring opinion by Judge Sonia Sotomayor highlighted the importance of metadata – information about our communications like IP addresses, dialed numbers, and our subscriber information- which indicate our associations, locations and identities and can be just as revealing as the content of our conversations and emails.
In summary, the 13 principles are the following:
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Legality: Any limitation to the right to privacy must be prescribed by law, meaning that every interference by a law enforcement agency must be clearly spelled out in the plain text of the law, accessible, and foreseeable to the public
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Legitimate aim: Any form of surveillance must correspond to a predominantly important legal interest
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Necessity: Surveillance must be strictly limited to information that is vital to the investigation
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Adequacy: The surveillance must be appropriate to the need specified
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Proportionality: Decisions about surveillance must weigh the benefits to be gained from acquiring the information against the severity of the intrusion
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Competent judicial authority: Determinations related to surveillance must be made by a judge that is impartial to the issue at hand, independent from political influence, and has the capacity to rule on the issue at hand
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Due process: Any interference with fundamental rights must be properly enumerated in law, consistently practiced, and available to the public, meaning that a judge must make sure that freedoms are respected and limitations are narrowly applied
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User notification: Impacted individuals should be notified when they are being surveilled so that they can have the ability to appeal the decision
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Transparency: Governments should disclose to the public when surveillance has occurred and the scope of the surveillance
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Public oversight: States should establish independent oversight mechanisms – outside of the three branches of government – to prevent misconduct and rein in abuses
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Integrity of communications and systems: States should not compel any corporation to build surveillance or monitoring capability into their systems, or to collect or retain information only for surveillance purposes
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Safeguards for international cooperation: Because the exchange of information crosses borders, there must be clear and consistent ways in which countries access and transfer information
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Safeguards against illegitimate access: Governments should penalize illegal communications surveillance by public and private actors, protect whistleblowers, and allow avenues for redress by affected individuals
For the full text of the principles, please go to www.necessaryandproportionate.org. If your organization wants to sign on, please email Fabiola Carrion at [email protected].
Fabiola Carrión is a Policy Counsel at Access, an international NGO dedicated to protecting and extending the rights of digital users around the world. In this capacity, she leads the due process signature initiative by formulating policies and coordinating efforts that protect the right to access to justice, procedural fairness, and other international human rights.
