Privacy, PRISM, and the Future of Surveillance

What’s the connection between government surveillance and the ability of citizens to exercise their right to free expression?

The right to free expression means that the state should protect the communication and expression of all individuals in this territory, including the right to privacy. This is a different right but in a way intimately connected to freedom of expression because it enhances freedom of expression, facilitates it, and gives security for people to communicate freely.

The problem with state surveillance is that in general it’s an intimidating factor which inhibits freedom of expression. More specifically, in authoritarian regimes or at critical moments it can also lend itself to forms of direct censorship or even political persecution.

The report was released in the same week that details of US electronic surveillance came to light. Do you care to comment on that story?

It’s an absolute coincidence, but an interesting one because it proves precisely the point that I was making in the report: that state surveillance is legitimate in certain specific cases and following the steps of due process of law, but it should never become a blanket, generalized practice. Because, to put it bluntly, if we give police and security authorities the right to monitor everything and every communication we’re in a way generating a police state, and this is dangerous for democracy.

Democracy is based on the opposite. Security comes from the possibility of dissent. Security comes from public debate and opinions and from everyone’s views being represented and everyone’s privacy being respected. Citizens have to protect themselves, their privacy, their communications, and all of their rights.

How has the shift online affected our rights to privacy? Can you tell us about some of the key findings of your new report?

The main point is that the new technology clearly facilitates communication in general but it also facilitates surveillance and everything that comes with it. It facilitates profiling and issues that are being done even for commercial reasons, not only political reasons, and one of the problems is that people tend not to be aware or just simply not to listen or to look and see these things happening. Even in the handling of information that seems non-important like what we have in the social networks.

The other problem with blanket surveillance that people don’t understand is that if you are doing blanket surveillance you have to establish criteria for who are the people you are surveilling and inevitably that leads to profiling. This would mean you decide to apply the surveillance of communications to the peoples of a nation, or to a specific territory, or peoples of a specific religion or ethnic origin, and that becomes very dangerous in our world. Because if we begin splitting the world into factors we aggravate the danger.

Together with the Norwegian Ministry of Foreign Affairs, the Open Society Foundations are supporting your efforts to conduct a series of regional consultations on the report, helping local groups leverage the report to hold their own governments to account. What are your hopes for these consultations? Also, in 2011, the Foundations and the Swedish government supported regional consultations on human rights and the internet, which fed into your first report on the internet. What did you learn from those?

These consultations have two dimensions to them. One is to hear from individuals: their preoccupations, the situation in their countries, and their suggestions. The other dimension is to raise awareness of these issues and encourage people to debate them and understand them better.

I found the consultations on [human rights and] the internet very rich and exciting because they gave a lot of other new elements.

In the current case, what I am finding is that this is an issue people have been thinking less about, and when surveillance, privacy, and free expression are brought to their attention they are particularly concerned. In general it seems to me an issue that people have not worked on that much except for those who have actually been studying it.

So you have there two sets of individuals—the broad public who I think is in general not much aware of this, and a group of people who have been studying it seriously, documenting it, and making serious academic contributions as well, which was also very encouraging for the drafting of the report.

What can the UN do to ensure governments’ use of surveillance tools is proportionate and respects due process?

First of all, they have to establish the steps of due process. I think all states should begin by analyzing what are their concerns—whether they be national security, public order, or combating organized crime, which are all legitimate concerns. But in light of those concerns, try to establish appropriate legal mechanisms with a very clear, detailed, specific process that has judicial review, and the possibility for individuals to appeal to a court in these cases, which is hard to do if you’re not aware that it’s happening to you.

It’s worth re-emphasizing: The point is not to challenge the legitimacy of national security or the activity of security personnel. The main point is to try to reaffirm that all security activities of every nature should be done within the boundaries of a democratic legal framework that respects basic human rights. And ultimately that will be the strength of a society. I truly believe that the more democratic a society becomes, the stronger it becomes, because its citizens will fight for that democracy and that democratic model.

To learn more about this issue, read the UN Special Rapporteur’s report.