In 2013, when National Security Agency whistleblower Edward Snowden burst onto the world stage, “privacy” was Dictionary.com’s word of the year. Despite the short attention spans of the Internet age, concerns about privacy have only expanded. People worry not only about NSA spying but also about whether government efforts to build backdoors into the Internet have made them digitally insecure and vulnerable to hackers such as those who broke through the defenses of Target and Sony. In response, tech companies are peddling smartphones with virtually unbreakable encryption. They are increasing security measures to protect customer data stored in the cloud. Technologists are developing tools to make it easy for the average Jane to protect her information from prying eyes.
Amid this flurry, the United Nations’ human rights organs are waking up to the challenge of protecting the right to privacy enshrined in human rights treaties. Last year the U.N. High Commissioner for Human Rights issued a report analyzing how NSA-style mass surveillance practices fall short of international standards for safeguarding privacy. The U.N. General Assembly twice adopted resolutions highlighting the need to protect privacy in the digital age.
Reports and resolutions are well and good, but what’s next?
This month the action is in Geneva, where the U.N. will decide whether to establish a special rapporteur on the right to privacy to join rapporteurs dedicated to issues such as torture, extrajudicial killings, counterterrorism and free speech. Independent experts serving an in individual capacity, rapporteurs act as critical focal points for governments and civil society on the human rights issues they cover. They analyze laws and rules that govern how broad human rights treaties work in real life and how they must be adapted for new circumstances. For example, recent reports investigated how drones have changed the nature of warfare and how they should be regulated. International law develops slowly and arduously, and this type of deep thinking is critical to its progress and to ensuring that it doesn’t become irrelevant to the world in which we live. People who believe their rights have been violated can lodge complaints for a special rapporteur to review and pursue if they are considered meritorious. Rapporteurs are often far more outspoken in calling out human rights violations than U.N. officials.
Privacy has long been the stepchild of this system, partly covered by those responsible for free speech and terrorism but lacking its own home. It’s critical that the U.N. Human Rights Council build one now. Technological innovation is proceeding at a dizzying pace and has profound implications for traditional understandings of individuals’ private life, into which government shouldn’t intrude without good reason. The types of mass surveillance programs that have come to light from the Snowden archives challenge this assumption. These programs sweep up swaths of data — e.g., all the phone calls to and from certain countries, hundreds of millions of text messages and billions of records of e-mails, Facebook chats and Internet histories — and comb through them looking for information of interest. As one NSA slide explains, instead of ordering what it wants from a menu, the agency orders “one of everything” and then decides what it wants to eat. Governments justify these programs by saying they are needed to keep us safe in a world where new and diverse threats to security abound. But privacy rules, especially at the international level, are not designed to cope with this new paradigm. They need to be updated.
A privacy special rapporteur could contribute to this process by bringing to the U.N. information and expertise that would help states understand how technology affects privacy. Equally important, the rapporteur could work with various U.N., governmental and civil rights groups to begin developing a concrete vision of the right to privacy in the 21st century.
While the Snowden disclosures have brought renewed attention to privacy, the issue is not limited to the NSA. Countries around the world have electronic surveillance capabilities. While today these may be no match for those of the U.S. and its partner Five Eyes countries (Australia, Canada, New Zealand and the United Kingdom), they will likely grow over the next few years and raise many of the same issues. As we live more and more of our lives online, even more private details will become available to corporate and government actors.
Dealing with these issues is perhaps the foremost challenge of our times, and the U.N. has an important role to play. Establishing a special rapporteur to focus on privacy in the digital age won’t resolve them. But it’s an important first step in ensuring that the U.N. and its member countries remain focused on how to protect privacy in a rapidly changing and often turbulent world.