What are my rights against NSA surveillance

Mass surveillance by the NSA - a human rights violation

Much has been written and said on the subject since the revelations of the extent of the National Security Agency (NSA) surveillance activity by whistleblower Edward Snowden. This article brings together those aspects of the debate that are important from a human rights perspective and need to be pursued further.

Regarding the effects of the scandal on the domestic political debate in Switzerland, please also refer to the article Mass surveillance: In Switzerland the pressure to protect digital data is increasing.

Review of the NSA scandal

The Snowden files in early summer 2013 exposed a number of mass surveillance programs operated by the US secret service NSA. These programs enable the NSA to access a wide range of information from government institutions and private companies. Among other things, these are data that the large US communications companies collect and store about their customers, but also the information that customers transmit to one another as private individuals by using these communication channels.

In this way, the NSA can access all Internet and telephone data from home and abroad that are transported over fiber optic networks. This brings together an unbelievable amount of data, which the secret service or companies that work on its behalf tapped, stored and subjected to a content analysis on a daily basis.

These revelations have sparked outrage around the world at the global level of privacy surveillance. The result was debates about the trustworthiness of the communications industry, the effectiveness of the international and national legal framework, and the question of whether the powerful US intelligence service is adequately controlled. Last but not least, it has been under discussion since then whether the USA will comply with the obligations it entered into when it ratified international agreements in the field of human rights.

State invasion of privacy

The US justifies its worldwide surveillance activities that surveillance is necessary to protect its own civilian population from terrorist attacks. This is countered by the fact that states are obliged to refrain from unjustified interference in the protected areas of privacy (Art. 8 ECHR, Art. 17 UN Pact II). The UN Human Rights Committee recorded in a General Commentary in 1988 what belongs to the private sphere. It includes, among other things, every data exchange in electronic form, i.e. telephone calls via landline, mobile phone and Skype as well as e-mail.

State encroachments on privacy are possible under certain conditions, for example in criminal prosecution. For an interference to be lawful, (1) there must be a legal basis. In addition, (2) a public interest or the protection of the fundamental rights of third parties must justify the interference and (3) the interference must be proportionate. The latter is obviously not met in the case of mass surveillance. That is why the area-wide mass surveillance is not a legitimate invasion of privacy, but a violation of human rights.

The unpredictable logic of the algorithms

Anyone who thinks that he or she has nothing to hide from the authorities and that the surveillance problem does not concern him / her is wrong. The notion that the amount of data makes it difficult for the intelligence services to generate detailed profile pictures of any individual shows a lack of knowledge of technical possibilities. The more data that is available, the more precise the statements and forecasts made by analysts. With the help of suitable software and hardware, it is possible to uncover correlations and patterns (so-called algorithms) of data and to gain precise knowledge.

This is dangerous because algorithms can be used for any purpose. You can say which advertising banners make more or less sense for a certain person. But they can also be used to make statements about a possible impending criminal behavior of a person. In such a case, this can have devastating effects for the individual and lead to great inconvenience in everyday life.

Who trusts the secret services?

Nobody can guarantee that secret services will evaluate the data exclusively for counter-terrorism purposes. It is even very likely that other target groups, which are classified as a security risk, are also preventively monitored and analyzed. One can easily imagine that the huge data potential can, under certain circumstances, also be used for delusional and totalitarian purposes.

Democratically governed societies must grapple with the question of how far the right to privacy should be restricted because of the public interest in counter-terrorism. A critical approach to this debate is essential. In practice, the state gives the secret service extensive powers. Even if the authorities put the secret service under parliamentary control, it would be an illusion to think that the services would inform openly and precautionary about what they are doing with the data collected. Nor can the state guarantee that the data does not fall into the wrong hands, especially if private companies have to be used for their collection and analysis, as in the case of the NSA. For these reasons, comprehensive surveillance is untenable in terms of human rights.

U.N.

The surveillance activities of the intelligence services have had an impact on the UN, which has meanwhile led to debates on several levels about the right to privacy in the digital age. For example, the Third Commission of the UN General Assembly for Social, Humanitarian and Cultural Affairs passed a resolution in November 2014 calling on states to respect and protect the right to privacy.

Council of Europe and EU

In the Council of Europe, too, various institutions have dealt with the right to privacy in the course of the NSA affair. The Commissioner for Human Rights of the Council of Europe writes in a comment that the laws must clearly and precisely set out the crimes and activities that justify surveillance. Monitoring of communication must therefore be strictly limited in time and it must be clear how long data will be stored. In addition to the Commissioner, the Parliamentary Committee on Legal Affairs and Human Rights of the Council of Europe has published a document entitled “National Security and Access to Information”.

At EU level, a ruling by the European Court of Justice of April 8, 2014 on the EU data retention directive is of particular interest: According to this, data retention violates the fundamental rights to respect for private life and the protection of personal data because it generally affects everyone People and electronic means of communication because the access to the data is not precisely regulated and because the storage period of at least six months applies regardless of the possible use of the data for the pursued goal. In addition, the directive does not provide for any measures to protect against unauthorized access and unauthorized use and that no data storage in the EU is required. For all these reasons, the Court of Justice has recognized that data retention under the Directive disproportionately restricts fundamental rights and has therefore declared the Directive to be invalid.

Civil society is also forming

Last but not least, the NSA scandal has led civil society around the world to take various actions on the subject. The focus is on the requirement of states and companies to respect the privacy of every individual on the Internet. Interested parties are invited to follow the international initiatives and campaigns and sign the petitions.

  • Call for the end of mass surveillance!
    International campaign to strengthen the right to privacy

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