An international coalition of more 300 human rights, privacy organizations, and privacy leaders established policies “that governments must follow to protect human rights in an age of digital surveillance” which has been led by the Electronic Frontier Foundation (EFF), Access, and Privacy International. These “Necessary and Proportionate Principles” outline 13 policies that governments must follow to protect human rights in an age of digital surveillance:
- Legality: Any limitation to the right to privacy must be prescribed by law.
- 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.
- Necessity: Laws permitting communications surveillance by the State must limit surveillance to that which is strictly and demonstrably necessary to achieve a legitimate aim.
- Adequacy: Any instance of communications surveillance authorised by law must be appropriate to fulfil the specific legitimate aim identified.
- Proportionality: Communications surveillance should be regarded as a highly intrusive act that interferes with the rights to privacy and freedom of opinion and expression, threatening the foundations of a democratic society.
- Competent Judicial Authority: Determinations related to communications surveillance must be made by a competent judicial authority that is impartial and independent.
- Due process: Due process requires that States 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.
- 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.
- Transparency: States should be transparent about the use and scope of communications surveillance techniques and powers.
- Public oversight: States should establish independent oversight mechanisms to ensure transparency and accountability of communications surveillance.
- Integrity of communications and systems: In order to ensure the integrity, security and privacy of communications systems, and in recognition of the fact that compromising security for State purposes almost always compromises security more generally, States should not compel service providers or hardware or software vendors to build surveillance or monitoring capability into their systems, or to collect or retain particular information purely for State surveillance purposes.
- Safeguards for international cooperation: In response to changes in the flows of information, and in communications technologies and services, States may need to seek assistance from a foreign service provider.
- Safeguards against illegitimate access: States should enact legislation criminalising illegal communications surveillance by public or private actors.
Specifically #12 Safeguards for international cooperation includes details about Mutual Legal Assistance Treaties (MLATs) and other agreements 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 individuals is applied. Where States seek assistance for law enforcement purposes, the principle of dual criminality should be applied. States may not use mutual legal assistance processes and foreign requests for protected information to circumvent domestic legal restrictions on communications surveillance. Mutual legal assistance processes and other agreements should be clearly documented, publicly available, and subject to guarantees of procedural fairness.
It will be interesting to see how successful this international effort for privacy protection will be.