Tech Liberty NZ Defending civil liberties in the digital age

Application of Human Rights to Communication Surveillance

Tech Liberty is proud to be a co-signatory of the International Principles on the Application of Human Rights to Communication Surveillance.

Tech Liberty's purpose is to defend civil liberties in the digital age. One of the key challenges has been the way that advances in technology have made mass surveillance dramatically cheaper and easier to implement. We can see this battle currently being fought with the GCSB and TICS Bills in New Zealand and the recent revelations about pervasive government spying in the USA, UK and other countries.

The principles give us a valuable tool to analyse proposed surveillance measures and score them against a set of well thought out principles. The principles are:

1. Legality: Any limitation on the right to privacy must be prescribed by law.
2. Legitimate Aim: Laws should only permit communications surveillance by specified State authorities to achieve a legitimate aim that corresponds to a predominantly important legal interest that is necessary in a democratic society.
3. Necessity: Laws permitting communications surveillance by the State must limit surveillance to that which is strictly and demonstrably necessary to achieve a legitimate aim.
4. Adequacy: Any instance of communications surveillance authorised by law must be appropriate to fulfill the specific legitimate aim identified.
5. Proportionality: Decisions about communications surveillance must be made by weighing the benefit sought to be achieved against the harm that would be caused to users’ rights and to other competing interests.
6. Competent judicial authority: Determinations related to communications surveillance must be made by a competent judicial authority that is impartial and independent.
7. Due process: States must respect and guarantee individuals' human rights by ensuring that lawful procedures that govern any interference with human rights are properly enumerated in law, consistently practiced, and available to the general public.
8. User notification: Individuals should be notified of a decision authorising communications surveillance with enough time and information to enable them to appeal the decision, and should have access to the materials presented in support of the application for authorisation.
9. Transparency: States should be transparent about the use and scope of communications surveillance techniques and powers.
10. Public oversight: States should establish independent oversight mechanisms to ensure transparency and accountability of communications surveillance.
11. Integrity of communications and systems: States should not compel service providers, or hardware or software vendors to build surveillance or monitoring capabilities into their systems, or to collect or retain information.
12. Safeguards for international cooperation: Mutual Legal Assistance Treaties (MLATs) entered into by States should ensure that, where the laws of more than one State could apply to communications surveillance, the available standard with the higher level of protection for users should apply.
13. Safeguards against illegitimate access: States should enact legislation criminalising illegal communications surveillance by public and private actors.