General Assembly/Third Committee: Statement by Ambassador Braun at the Adoption of the Resolution on the Right to Privacy in the Digital Age
Germany and Brazil, the main sponsors of this initiative, as well as the numerous co-sponsors, are pleased to present to this Committee draft resolution L. 26/Rev. 1 on the “The right to privacy in the digital age”. We would like to thank all 53 co-sponsors for their continuing support! We appreciate the frank and open spirit that prevailed throughout the negotiations and the flexibility displayed by all sides. Since the tabling of the revised draft on 19 November, the following countries have joined as additional co-sponsors: Belize, Colombia, Cuba, the Czech Republic, Estonia, Ghana, Italy, Latvia, Lebanon, Morocco, Panama, Saint Lucia, Saint Vincent and the Grenadines, Serbia, Slovakia, Sweden, Timor Leste, Turkey and Venezuela.
Last year’s revelations by Edward Snowden led to a global debate on the protection of the right to privacy. In light of this, the General Assembly adopted resolution 68/167, also authored by Brazil and Germany, reaffirming that human rights must be protected online in the same way that they are protected offline.
This was a necessary, even an overdue step. However, we all know that challenges and gaps remain. Unprecedented technical possibilities to conduct surveillance or to intercept and collect personal data challenge the right to privacy and other human rights. While technological advances, as elsewhere, bring many benefits for humankind, here, too, we must ask ourselves: Where are the moral and legal boundaries to such technological advances and how do we protect and respect human rights in that context?
The groundbreaking report on the Right to Privacy by the former High Commissioner for Human Rights, as well as the reports by the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism and by the Special Rapporteur on the promotion and protection of the right to freedom of opinion, provide much needed guidance to that question.
This year’s resolution contains a number of important new elements, most of them inspired by these reports:
- First, we added a reference to metadata in the context of digital surveillance. There are numerous studies showing how easy it is to compile personal profiles of individuals just by collecting and compiling metadata. In essence, metadata can be as privacy-sensitive as the content of communications themselves. Recent discussions regarding the profiles established by Internet search engines have demonstrated the serious relevance of this issue.
- Furthermore, the resolution reaffirms the responsibility of private parties to respect human rights when dealing with personal data. In times when not States, but private enterprises control and manage the bulk of our data, this is a significant step forward. We also reaffirm the applicability of human rights when States cooperate with private companies to obtain personal data. This means that human rights obligations of States also apply when they use private companies for surveillance purposes.
- The resolution also stresses the fact that human rights defenders themselves often become victims of surveillance because of their activities.
- The operative part of the resolution now establishes that individuals whose right to privacy has been violated as a consequence of unlawful or arbitrary surveillance must have access to effective remedy. This reflects the established principle that an effective protection of human rights must include effective remedy for violations.
- Finally, the resolution encourages the Human Rights Council to consider establishing a special procedure that monitors the promotion and protection of the right to privacy. We value the Human Rights Council’s previous contributions on this matter and believe that a new special procedure, having a special rapporteur for example, could bring important contributions to the debate.
Just a few weeks ago, Germany celebrated the 25th anniversary of the fall of the Berlin wall. Through peaceful protest, East Germans were able to overcome a regime that oppressed its own citizens. This oppression was evident in the way East German authorities were able to establish an elaborate system of surveillance even without today’s modern technology. Every letter could be opened and phone calls regularly started with a “click sound”, meaning that there was an extra listener. Germans were shocked when they discovered the millions of files with individual profiles of citizens that had been compiled by the secret police. Stacked together they would have covered 111 kilometers, or 69 miles.
This past has rendered many Germans very sensitive to intrusions by State authorities into their right to privacy. Of course, we do recognize that surveillance and the interception of communications can sometimes contribute and have indeed contributed to effective prevention and prosecution of crimes, including terrorist acts. However, it is crucial for the State to demonstrates that the surveillance activities it undertakes to defend legitimate security concerns are necessary and proportionate. Otherwise, the right to privacy becomes a dead letter. Especially where mass surveillance technology is used, a situation can easily be created where no privacy of communications on the internet exists at all. Without the necessary checks, we risk turning into Orwellian states, where every step of every citizen is being monitored and recorded in order to prevent any conceivable crime.
Much remains to be done to protect the right to privacy in the digital age. Laws and policies always seem to be way behind the technological developments. Still, we cannot surrender to these challenges. It is our common duty to uphold the human right to privacy and to protect our citizens from violations of that right. This resolution is only a starting point, but it is an important starting point because it keeps this important topic on the human rights agenda of the United Nations.