Freedom of Expression

Press Release R80/15

The Office of the Special Rapporteur Expresses Concern Over the Acquisition and Implementation of Surveillance Programs by States of the Hemisphere

July 21, 2015

Washington, D.C. – The Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights expresses its concern on the disclosure of a large amount of information that says that several governments in the hemisphere have reportedly purchased and implemented surveillance programs that could cause serious harm to the rights to privacy and freedom of thought and expression.

In this sense, the Office of the Special Rapporteur urges the authorities to investigate, provide a clear explanation on these facts and apply sanctions when it corresponds. The States should also review the pertinent legislation as well as modify their policies in order to ensure that these programs measure up to international human rights principles.

In recent days, at least 400 GB of information were publicly exposed from the Italian firm Hacking Team, a company dedicated to the commercialization of the Remote Control System (RCS) spying software provided to government and government agencies,  also known as DaVinci or Galileo. The documents include invoices, emails and tax data, among other files.

The surveillance software commercialized by the company is designed to evade computers or mobile phones’ encryption, allowing the gathering of information, messages, calls and emails, voice over IP and chat communication from everyday devices. This software can also remotely activate microphones and cameras. According to the Hacking Team website, "[e]vidence collection on monitored devices is stealth and transmission of collected data from the device to the RCS server is encrypted and untraceable."

According to several civil society organizations and reports publish in different media, some States of the region are or used to be clients of Hacking Team and are using their software without the legal authority to do so. After the release of information, some States denied any link to Hacking Team and some others stated that they bought the software supported by law for the prevention and investigation of organized crime and terrorism.

On this disclosure, and facing possible impacts derived from the usage of this type of privacy-invading technologies and the right to exercise freedom of expression without illegal interferences, the Office of the Special Rapporteur would like to recall that according to international standards, the use of programs or systems for the surveillance of private communications should be clearly and precisely established by law, genuinely exceptional and selective, and must be strictly limited to the needs to meet compelling objectives such as the investigation of serious crime as defined in legislation. Such restrictions must be strictly proportionate and consistent with the international standards of the right to freedom of expression. This Office has stated that the surveillance of communications and the interference in privacy that exceeds what is stipulated by law, which are oriented to aims that differ from those which the law permits or are carried out clandestinely, must be harshly punished. Such illegitimate interference includes actions taken for political reasons against journalists and independent media.

In its Joint Declaration on surveillance programs and their impact on freedom of expression, the Office of the Special Rapporteur stated that the law must pursue a legitimate aim and 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. Furthermore, access to communications and personal information must be legally authorized 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.

Moreover, as stated by this Office in its report on Freedom of Expression and the Internet, the decisions to undertake surveillance activities that invade the privacy of individuals must be authorized by independent judicial authorities, who must state why the measure is appropriate for the accomplishment of the objectives pursued in the specific case; whether it is sufficiently restricted so as not to infringe upon the right in question more than necessary; and whether it is proportionate in relation to the interests pursued. Investigative proceedings involving an invasion of privacy authorized by law and by a competent judge must also respect other due process safeguards. States must ensure that the judicial authority is specialized and competent to make decisions on the legality of the communications surveillance, the technologies used, and its impact on the sphere of rights that could be involved.

For its part, the private sector that conducts and facilitates digital surveillance must make an effort to ensure the respect of human rights. These companies are urged to work together to not offer, or in its  attempts to implement mass surveillance programs in contravention of the principles established herein. In this regard, the Office of the United Nations High Commissioner for Human Rights recalled in its report on the right to privacy in the digital age (A/HRC/27/37) that "the Guiding Principles on Business and Human Rights, endorsed by the Human Rights Council in 2011, provide a global standard for preventing and addressing adverse effects on human rights linked to business activity. The responsibility to respect human rights applies throughout a company’s global operations regardless of where its users are located, and exists independently of whether the State meets its own human rights obligations."

Transparency and access to information regarding these surveillance programs are also an essential element in a democratic society. As the Office of the Special Rapporteur has repeatedly stated, the access of public information is an essential right and "should be subject to a narrowly tailored system of exceptions to protect overriding public and private interests such as national security and the rights and security of other persons. Secrecy laws should define national security precisely and indicate clearly the criteria which should be used in determining whether or not information can be declared secret".

The law must ensure that the public can access information on private communications surveillance programs, the overall legal framework, their scope, procedures to be followed for authorizing surveillance, selecting targets of surveillance, and using, sharing, storing, and destroying intercepted material, and any regulation that may be in place to guarantee that they cannot be used arbitrarily. Moreover, the States have the obligation to broadly divulge information regarding the existence of illegal programs of surveillance on private communications.

As mentioned in the Joint Declaration on surveillance programs and their impact on freedom of expression, and according the Global Principles on National Security and the Right to Information (The Tshwane Principles), the right to access to public information includes the information regarding national security. The law may establish specific exceptions as long as they are necessary in a democratic society.

The Office of the Special Rapporteur draws attention to any attempts aimed at silencing journalists and media that expose such activities. Journalists, members of the media or members of civil society who have access to and disseminate confidential information about these types of surveillance programs because they think it is in the of public interest must not be subjected to the subsequent imposition of liability for this sole fact under any circumstances.

Calls by public officials for illegitimate retributive action against those who have disseminated classified information which refers to possible human rights violations are not acceptable. Filtering systems, whether imposed by a government or commercial service provider to block the spreading of information on these agreements or activities, are a form of prior censorship and cannot be justified.

In short, given the negative impact these programs could have on rights such as privacy or freedom of expression, the respective legislation must establish the aforementioned necessary safeguards. These principles have been collected in the report Freedom of Expression and the Internet of the Office of the Special Rapporteur of the Inter-American Commission on Human Rights (OEA/Ser.L/V/II.CIDH/RELE/INF. 11/13), the Report on Terrorism and Human Rights of the Inter-American Commission on Human Rights (OEA/Ser.L/V/ll.116 Doc. 5 rev. 1 corr), the Report on the Implications of States’ Surveillance of Communications on the Exercise of the Human Rights to Privacy and to Freedom of Opinion and Expression () of the United Nations Special Rapporteur on the Protection and Promotion of the Right to Freedom of Opinion and Expression, Resolution adopted by the General Assembly of the United Nations on the right to privacy in the digital age (A/RES/68/167), the Report of the Office of the United Nations High Commissioner for Human Rights on the right to privacy in the digital age (A/HRC/27/37), The Global Principles on National Security and the Right to Information (The Tshwane Principles), and the joint declarations on freedom of expression and the InternetWikileakssurveillance programs and their impact on freedom of expression, and on freedom of expression and responses to conflict situations.

The Office of the Special Rapporteur for Freedom of Expression was created by the Inter-American Commission on Human Rights (IACHR) to encourage the defense of the right to freedom of thought and expression in the hemisphere, given the fundamental role this right plays in consolidating and developing the democratic system.