Freedom of Expression

Joint Statement



United Nations Special Rapporteur on the Protection

and Promotion of the Right to Freedom of Opinion and Expression

Special Rapporteur for Freedom of Expression

of the Inter-American Commission on Human Rights


Joint Declaration on surveillance programs and their impact on freedom of expression


June 21, 2013 – In response to the release of information on secret surveillance programs used in the fight against terrorism and the defense of national security that could severely affect the right to freedom of thought and expression and the right to privacy, the United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression and the Special Rapporteur for Freedom of Expression of the OAS Inter-American Commission on Human Rights consider it necessary to highlight a series of international legal principles on the issue.


In recent days, the scope of certain U.S. National Security Agency of the United States (NSA) programs used to collect digital content and the metadata of telephonic communications has come to light. According to the information available, the programs are being carried out under the Foreign Intelligence Surveillance Act (FISA) and the USA Patriot Act. They are supervised by an independent court that operates in secrecy and are subject to the classified oversight of special committees in the United States Congress. Nevertheless, as indicated hereinafter, the information available on the scope of these programs highlights the risks their implementation poses to the right to privacy and freedom of expression, as well as the need to amend the corresponding legislation and establish improved mechanisms for transparency and public debate on these practices.


At the same time, according to the information collected in thematic and country reports issued by the special rapporteurs, other states in the Americas have also intercepted communications from private parties under intelligence laws or outside the bounds of existing legal regulations. The resulting information was in many cases used for political purposes, or even distributed broadly through state media without the authorization of the people affected by it. The special rapporteurs have also learned of significant progress in the judicial investigations of some of these cases of illegal surveillance.


In this context, the special rapporteurs reiterate their concern at the existence of programs and security policies that could cause serious harm to the rights to privacy and to freedom of thought and expression. Consequently, they urge the corresponding authorities to amend the pertinent legislation and modify their policies in order to ensure that these programs measure up to international human rights principles. As a reminder of its doctrine in this area and to assist states in fulfilling their corresponding international legal obligations, the special rapporteurs have decided to prepare and disseminate this Joint Declaration containing the basic principles of international law that guide the design and implementation of surveillance programs intended to combat terrorism and defend national security.


Importance of guaranteeing national security while following international human rights standards


1. In their various reports and declarations on terrorism and freedom of expression, the special rapporteurs have stated - taking into account the assessments of other international human rights bodies - that terrorism is a clear and significant threat to the protection of human rights, democracy and regional and international peace and security. Based on their obligation to ensure that people can freely exercise their rights, states have taken a variety of measures to prevent and combat terrorism, including the formulation of domestic laws and policies to prevent, investigate, try and punish these activities. These efforts have also included the negotiation of multilateral treaties on state cooperation in the struggle against terrorism.


2. When taking action to prevent and combat terrorist activities, states must comply with their international obligations, including those assumed within the frameworks of international human rights law and international humanitarian law. Both the IACHR Special Rapporteur for Freedom of Expression and the United Nations Special Rapporteur on Freedom of Opinion and Expression have in previous country reports, thematic reports, and joint declarations evaluated the implications for freedom of expression of the counter-terrorism initiatives pursued by states. The special rapporteurs have systematically emphasized that unconditional respect for the full enjoyment of human rights or for rights that have not been legitimately suspended in emergency situations must be a fundamental part of any counter-terrorism strategy.


3. In his recent report on communications surveillance and its implications for the exercise of the rights to privacy and freedom of expression (A/HRC/23/40), the United Nations Special Rapporteur on the Protection and Promotion of the Right to Freedom of Opinion and Expression recognizes that the protection of national security may justify in exceptional cases the surveillance of private communications. However, it is crucial to understand that given the dynamic character of the Internet and of communications technology in general, this type of surveillance may constitute a particularly invasive act that seriously affects the right to privacy and freedom of thought and expression.


4. Effectively, in recent years, the technology available to states for capturing and monitoring private communications has been changing very rapidly. The Internet has created unprecedented opportunities for the free expression, communication, possession, search for, and exchange of information. It has thereby facilitated the development of large amounts of data on persons, including their locations, online activities, and with whom they communicate. All of this information, which is maintained in archives that are accessible and systematized, can be highly revealing. Because of this, its use by police and security forces running surveillance programs intended to combat terrorism and defend national security has increased without adequate regulation in the majority of the states in our region.


5. It is concerning that legislation on intelligence and security has remained inadequate as new technologies have been developed in the digital era. It is especially concerning that indiscriminate access to information on communication between persons can have a chilling effect on the free expression of thought and the search for and distribution of information in the region.


6. It is urgently necessary for states to amend their laws to establish limits on the power to carry out surveillance of private communications, including the need for such limits and their proportionality, pursuant to the rights of persons and the principles of international law reflected in, for example, in the report on communications surveillance and its implications for the exercise of the rights to privacy and freedom of expression (A/HRC/23/40) issued by the United Nations Special Rapporteur on the Protection and Promotion of the Right to Freedom of Opinion and Expression and the report on Terrorism and Human Rights issued by the Inter-American Commission on Human Rights (OEA/Ser.L/V/ll.116 Doc. 5 rev. 1 corr).


The need to place limits on surveillance programs


7. The rights to privacy and to the free circulation of thought and information are protected by international human rights law. The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the American Convention on Human Rights and the American Declaration of the Rights and Duties of Man explicitly recognize the right of all persons, without discrimination, to freely express their thoughts and to seek and receive information of all kinds. Likewise, they prohibit arbitrary or abusive interference in private life, including communications, setting forth as well the right to state protection from such interference.


8. In keeping with this, states must guarantee that the interception, collection and use of personal information, including all limitations on the right of the affected person to access this information, be clearly authorized by law in order to protect them from arbitrary or abusive interference with their private interests. The law must establish limits with regard to the nature, scope and duration of these types of measures; the reasons for ordering them; the authorities with power to authorize, execute and monitor them; and the legal mechanisms by which they may be challenged.


9. Given the importance of the exercise of these rights for a democratic system, the law must authorize access to communications and personal information only under the most exceptional circumstances defined by legislation. When national security is invoked as a reason for the surveillance of correspondence and personal information, the law must clearly specify the criteria to be used for determining the cases in which such surveillance is legitimate. Its application shall be authorized only in the event of a clear risk to protected interests and when the damage that may result would be greater than society’s general interest in maintaining the right to privacy and the free circulation of ideas and information. The collection of this information shall be monitored by an independent oversight body and governed by sufficient due process guarantees and judicial oversight, within the limitations permissible in a democratic society.


10. Any surveillance of communications and interference with privacy that exceeds what is stipulated by law, has ends that differ from those which the law permits, or is carried out clandestinely must be harshly punished. Such illegitimate interference includes actions taken for political reasons against journalists and independent media.


11. Companies that provide Internet services, advertising or related services must make an effort to ensure that the rights of their clients to the protection of their data is respected, along with their right to use the Internet without arbitrary interference. These companies are encouraged to work together to resist attempts to implement mass surveillance programs in contravention of the principles established herein.


Duties of public accountability and transparency


12. All persons have the right to access information held by the state, including information having to do with national security. The law may establish specific exceptions as long as those exceptions are necessary in a democratic society. Specifically, the law must ensure that the public can access information on private communications surveillance programs, including their scope and any regulation that may be in place to guarantee that they cannot be used arbitrarily. Consequently, states should, at the very least, make public information regarding the regulatory framework of surveillance programs; the entities in charge of their implementation and oversight; the procedures for authorizing, choosing targets, and using the data collected; and the use of these techniques, including aggregate information on their scope. At all times, the state must maintain independent oversight mechanisms that are capable of ensuring program transparency and accountability.


13. The state must allow service providers to inform their customers about the procedures that they implement in response to state surveillance requests. They must provide customers as soon as possible with aggregated information on the number and scope of the requests they receive. In this context, states must make efforts to raise people’s awareness over their rights and the operation of new communication technologies such they can determine, manage, mitigate and make informed decisions on using such technologies.


14. The state has the obligation to divulge information regarding the existence of illegal programs of surveillance of private communication broadly. This duty must be satisfied given due consideration to the rights of the persons affected. In every case, states must carry out exhaustive investigations to identify and punish those who pursue these types of practices and report in a timely fashion to those who may have been victims of them.


Protection from sanctions for the disclosure of confidential information


15. Under no circumstances may journalists, members of the media, or members of civil society who have access to and distribute classified information on these types of surveillance program because they consider to be in the public interest be subjected to subsequent punishment. Likewise, confidential sources and material related to the disclosure of classified information must be protected by law. Journalistic self-regulatory mechanisms have contributed significantly to developing best practices as far as how to address and communicate complex and sensitive subjects. Journalists must be especially responsible when reporting information related to terrorism and national security. Their codes of ethics are useful for this.


16. As the special rapporteurs have stated repeatedly, a person with a connection to the state who, having a legal obligation to keep certain information confidential, only discloses to the public information that she reasonably believe to prove the commission of human rights violations ("whistleblowers") shall not be subjected to legal, administrative or disciplinary sanctions as long as that person has acted in good faith, pursuant to international standards on the subject.


17. Any attempt to impose subsequent punishment on those who reveal classified information must be based on previously established laws applied by impartial and independent bodies with full due process guarantees, including the right to appeal the ruling. The imposition of criminal sanctions must be exceptional and strictly limited according to necessity and proportionality.