Necessary and Proportionate Principles on Application of Human Rights to Communications Surveillance

Necessary and Proportionate
(endorsed by the Ontario Humanist Society)

International Principles on the Application of Human Rights to Communications Surveillance

Final version 10 July 2013
As technologies that facilitate State surveillance of communications advance, States are failing to ensure that laws and regulations related to communications surveillance adhere to international human rights and adequately protect the rights to privacy and freedom of expression. This document attempts to explain how international human rights law applies in the current digital environment, particularly in light of the increase in and changes to communications surveillance technologies and techniques. These principles can provide civil society groups, industry, States and others with a framework to evaluate whether current or proposed surveillance laws and practices are consistent with human rights.
These principles are the outcome of a global consultation with civil society groups, industry and international experts in communications surveillance law, policy and technology.
Privacy is a fundamental human right, and is central to the maintenance of democratic societies. It is essential to human dignity and it reinforces other rights, such as freedom of expression and information, and freedom of association, and is recognised under international human rights law.[1] Activities that restrict the right to privacy, including communications surveillance, can only be justified when they are prescribed by law, they are necessary to achieve a legitimate aim, and are proportionate to the aim pursued.[2]
Before public adoption of the Internet, well-established legal principles and logistical burdens inherent in monitoring communications created limits to State communications surveillance. In recent decades, those logistical barriers to surveillance have decreased and the application of legal principles in new technological contexts has become unclear. The explosion of digital communications content and information about communications, or "communications metadata" -- information about an individual’s communications or use of electronic devices -- the falling cost of storing and mining large sets of data, and the provision of personal content through third party service providers make State surveillance possible at an unprecedented scale.[3] Meanwhile, conceptualisations of existing human rights law have not kept up with the modern and changing communications surveillance capabilities of the State, the ability of the State to combine and organize information gained from different surveillance techniques, or the increased sensitivity of the information available to be accessed.
The frequency with which States are seeking access to both communications content and communications metadata is rising dramatically, without adequate scrutiny.[4] When accessed and analysed, communications metadata may create a profile of an individual's life, including medical conditions, political and religious viewpoints, associations, interactions and interests, disclosing as much detail as, or even greater detail than would be discernible from the content of communications.[5] Despite the vast potential for intrusion into an individual’s life and the chilling effect on political and other associations, legislative and policy instruments often afford communications metadata a lower level of protection and do not place sufficient restrictions on how they can be subsequently used by agencies, including how they are data-mined, shared, and retained.
In order for States to actually meet their international human rights obligations in relation to communications surveillance, they must comply with the principles set out below. These principles apply to surveillance conducted within a State or extraterritorially. The principles also apply regardless of the purpose for the surveillance -- law enforcement, national security or any other regulatory purpose. They also apply both to the State’s obligation to respect and fulfil individuals’ rights, and also to the obligation to protect individuals’ rights from abuse by non-State actors, including corporate entities.[6] The private sector bears equal responsibility for respecting human rights, particularly given the key role it plays in designing, developing and disseminating technologies; enabling and providing communications; and - where required - cooperating with State surveillance activities. Nevertheless, the scope of the present Principles is limited to the obligations of the State.
Changing technology and definitions
"Communications surveillance" in the modern environment encompasses the monitoring, interception, collection, analysis, use, preservation and retention of, interference with, or access to information that includes, reflects, arises from or is about a person’s communications in the past, present or future. "Communications" include activities, interactions and transactions transmitted through electronic mediums, such as content of communications, the identity of the parties to the communications, location-tracking information including IP addresses, the time and duration of communications, and identifiers of communication equipment used in communications.
Traditionally, the invasiveness of communications surveillance has been evaluated on the basis of artificial and formalistic categories. Existing legal frameworks distinguish between "content" or "non-content," "subscriber information" or "metadata," stored data or in transit data, data held in the home or in the possession of a third party service provider.[7] However, these distinctions are no longer appropriate for measuring the degree of the intrusion that communications surveillance makes into individuals’ private lives and associations. While it has long been agreed that communications content deserves significant protection in law because of its capability to reveal sensitive information, it is now clear that other information arising from communications – metadata and other forms of non-content data – may reveal even more about an individual than the content itself, and thus deserves equivalent protection. Today, each of these types of information might, taken alone or analysed collectively, reveal a person’s identity, behaviour, associations, physical or medical conditions, race, color, sexual orientation, national origins, or viewpoints; or enable the mapping of the person’s location, movements or interactions over time,[8] or of all people in a given location, including around a public demonstration or other political event. As a result, all information that includes, reflects, arises from or is about a person’s communications and that is not readily available and easily accessible to the general public, should be considered to be "protected information", and should accordingly be given the highest protection in law.
In evaluating the invasiveness of State communications surveillance, it is necessary to consider both the potential of the surveillance to reveal protected information, as well as the purpose for which the information is sought by the State. Communications surveillance that will likely lead to the revelation of protected information that may place a person at risk of investigation, discrimination or violation of human rights will constitute a serious infringement on an individual’s right to privacy, and will also undermine the enjoyment of other fundamental rights, including the right to free expression, association, and political participation. This is because these rights require people to be able to communicate free from the chilling effect of government surveillance. A determination of both the character and potential uses of the information sought will thus be necessary in each specific case.
When adopting a new communications surveillance technique or expanding the scope of an existing technique, the State should ascertain whether the information likely to be procured falls within the ambit of "protected information" before seeking it, and should submit to the scrutiny of the judiciary or other democratic oversight mechanism. In considering whether information obtained through communications surveillance rises to the level of "protected information", the form as well as the scope and duration of the surveillance are relevant factors. Because pervasive or systematic monitoring has the capacity to reveal private information far in excess of its constituent parts, it can elevate surveillance of non-protected information to a level of invasiveness that demands strong protection.[9]
The determination of whether the State may conduct communications surveillance that interferes with protected information must be consistent with the following principles.

The Principles
Legality: Any limitation to the right to privacy must be prescribed by law. The State must not adopt or implement a measure that interferes with the right to privacy in the absence of an existing publicly available legislative act, which meets a standard of clarity and precision that is sufficient to ensure that individuals have advance notice of and can foresee its application. Given the rate of technological changes, laws that limit the right to privacy should be subject to periodic review by means of a participatory legislative or regulatory process.
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. Any measure must not be applied in a manner which discriminates on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Necessity: Laws permitting communications surveillance by the State must limit surveillance to that which is strictly and demonstrably necessary to achieve a legitimate aim. Communications surveillance must only be conducted when it is the only means of achieving a legitimate aim, or, when there are multiple means, it is the means least likely to infringe upon human rights. The onus of establishing this justification, in judicial as well as in legislative processes, is on the State.
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. Decisions about communications surveillance must be made by weighing the benefit sought to be achieved against the harm that would be caused to the individual’s rights and to other competing interests, and should involve a consideration of the sensitivity of the information and the severity of the infringement on the right to privacy.
Specifically, this requires that, if a State seeks access to or use of protected information obtained through communications surveillance in the context of a criminal investigation, it must establish to the competent, independent, and impartial judicial authority that:
  1. there is a high degree of probability that a serious crime has been or will be committed;
  2. evidence of such a crime would be obtained by accessing the protected information sought;
  3. other available less invasive investigative techniques have been exhausted;
  4. information accessed will be confined to that reasonably relevant to the crime alleged and any excess information collected will be promptly destroyed or returned; and
  5. information is accessed only by the specified authority and used for the purpose for which authorisation was given.
If the State seeks access to protected information through communication surveillance for a purpose that will not place a person at risk of criminal prosecution, investigation, discrimination or infringement of human rights, the State must establish to an independent, impartial, and competent authority:
  1. other available less invasive investigative techniques have been considered;
  2. information accessed will be confined to what is reasonably relevant and any excess information collected will be promptly destroyed or returned to the impacted individual; and
  3. information is accessed only by the specified authority and used for the purpose for which was authorisation was given.
Competent Judicial Authority: Determinations related to communications surveillance must be made by a competent judicial authority that is impartial and independent. The authority must be:
  1. separate from the authorities conducting communications surveillance;
  2. conversant in issues related to and competent to make judicial decisions about the legality of communications surveillance, the technologies used and human rights; and
  3. have adequate resources in exercising the functions assigned to them.
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. Specifically, in the determination on his or her human rights, everyone is entitled to a fair and public hearing within a reasonable time by an independent, competent and impartial tribunal established by law,[10] except in cases of emergency when there is imminent risk of danger to human life. In such instances, retroactive authorisation must be sought within a reasonably practicable time period. Mere risk of flight or destruction of evidence shall never be considered as sufficient to justify retroactive authorisation.
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. Delay in notification is only justified in the following circumstances:
  1. Notification would seriously jeopardize the purpose for which the surveillance is authorised, or there is an imminent risk of danger to human life; or
  2. Authorisation to delay notification is granted by the competent judicial authority at the time that authorisation for surveillance is granted; and
  3. The individual affected is notified as soon as the risk is lifted or within a reasonably practicable time period, whichever is sooner, and in any event by the time the communications surveillance has been completed. The obligation to give notice rests with the State, but in the event the State fails to give notice, communications service providers shall be free to notify individuals of the communications surveillance, voluntarily or upon request.
Transparency: States should be transparent about the use and scope of communications surveillance techniques and powers. They should publish, at a minimum, aggregate information on the number of requests approved and rejected, a disaggregation of the requests by service provider and by investigation type and purpose. States should provide individuals with sufficient information to enable them to fully comprehend the scope, nature and application of the laws permitting communications surveillance. States should enable service providers to publish the procedures they apply when dealing with State communications surveillance, adhere to those procedures, and publish records of State communications surveillance.
Public oversight: States should establish independent oversight mechanisms to ensure transparency and accountability of communications surveillance.[11] Oversight mechanisms should have the authority to access all potentially relevant information about State actions, including, where appropriate, access to secret or classified information; to assess whether the State is making legitimate use of its lawful capabilities; to evaluate whether the State has been transparently and accurately publishing information about the use and scope of communications surveillance techniques and powers; and to publish periodic reports and other information relevant to communications surveillance. Independent oversight mechanisms should be established in addition to any oversight already provided through another branch of government.
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. A priori data retention or collection should never be required of service providers. Individuals have the right to express themselves anonymously; States should therefore refrain from compelling the identification of users as a precondition for service provision.[12]
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. Accordingly, the 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.
Safeguards against illegitimate access: States should enact legislation criminalising illegal communications surveillance by public or private actors. The law should provide sufficient and significant civil and criminal penalties, protections for whistle blowers, and avenues for redress by affected individuals. Laws should stipulate that any information obtained in a manner that is inconsistent with these principles is inadmissible as evidence in any proceeding, as is any evidence derivative of such information. States should also enact laws providing that, after material obtained through communications surveillance has been used for the purpose for which information was given, the material must be destroyed or returned to the individual.


Humanists for Social and Environmental Action: Letters re Tarek Loubani and John Greyson: Amnesty International Canada

Humanists for Social and Environmental Action: Letters re Tarek Loubani and John Greyson: Amnesty International Canada
Canadians Tarek Loubani and John Greyson are on hunger strike in protest at their continued detention in Egypt. On 14 September, the Public Prosecution extended their detention for a further 15 days following a brief investigation in Tora Prison.
Doctor Tarek Loubani and Professor John Greyson began their hunger strike, in which they will receive liquids but no food, on 16 September 2013. They continue to be held on charges of “violence”, “inciting violence” and “carrying weapons”, as well as “destroying public property”. They are being held alongside hundreds of Egyptians who were arrested during violence in Cairo on 16 August.
Amnesty International is concerned that, as with the hundreds of others arrested that day, Tarek Loubani and John Greyson have been accused of a broad array of offences without apparent consideration of their individual criminal responsibility.


Wounds into Wisdom | Hart House

Wounds into Wisdom | Hart House
During the 2013/14 academic year, Hart House, the Anti-Racism and Cultural Diversity Office, Hillel of Toronto (U of T), Ask Big Questions and the Multi-Faith Centre for Spiritual Study and Practice will jointly implement the Wounds into Wisdom series as a tri-campus programming initiative at the University of Toronto.

The practice of forgiveness, including its connection to restorative justice, public apology, redress and reparations, plays a significant role in efforts to reconcile historic wrongs, resolve conflicts and attain justice, whether committed at the individual or institutional level. What questions and challenges arise when we engage with this practice in our search for reconciliation and justice?

Drawing on The Forgiveness Project Exhibit, The F Word, the aim is to engage the campus community in critical conversations, guided reflection, self-evaluation and capacity building that will explore and experience ‘forgiveness’ as a lens through which we can begin to reconcile wrongs, resolve conflicts, repair harm, facilitate transformation and attain justice. Within the scope of this program, “forgiveness” is interpreted to include the related concepts of restorative justice, apology, redress and reparations. We believe that this expanded interpretation will enrich the dialogue and extend the appeal of the program as it takes into account multiple perspectives of the individual and community, secular and faith-based, historical and contemporary and the interpersonal and political.

Meditation and Healing the Heart | Hart House

Meditation and Healing the Heart | Hart House
Details:  Learn basic practices to calm the mind and body and generate a feeling of well-being to heal one’s heart and benefit others. This afternoon of training will introduce basic mindfulness practice and Metta (Loving-kindness) meditation. Metta (Loving-kindness) meditation: This practice consists of cultivating meditative awareness, then reciting specific words and phrases in order to evoke a “boundless warm-hearted feeling,” to self and others.

As a Buddhist Chaplain at the U of T Multifaith Centre and co-director of the Institute of Traditional Medicine, Marco combines his extensive experience in fine arts, counselling, and eco-theology with more than 20 years of Indo-Tibetan Buddhist practice and training. Currently completing his PhD in Creative Systemic Studies, Marco is a Dharma teacher and counsellor who maintains a private practice integrating MBI (mindfulness-based interventions) with psychotherapy. He has also produced dozens of nationally broadcast documentary films for the CBC on spirituality and contemporary visionaries.

When: Thurs., Oct. 10, 2013, 12-1 pm
: Activities Room, Hart House
: Free / Registration required /


REMINDER: Scientists for the Right to Know - Rally Sept 16, noon, Queen's park

Humanist Association of Toronto (HAT): Scientists for the Right to Know - Rally Sept 16, noon, Queen's park
Rally: Stand Up for Science
Sept. 16, 2013, from 12-1 pm

In Toronto, we will assemble at 11:45 at the south part of Queen’s Park in the front of the legislature: there will be a few short speeches. Prof. Scott Prudham, President of the UofT Faculty Association will speak, we will hear a message from Nobel Prize winner Prof. John Polanyi, 3rd speaker TBA. We will march down University Ave. and back to Queen’s Park. The Raging Grannies will sing.

Please come – in a lab coat if possible – and bring a friend along.

The Toronto Rally is jointly organized by the University of Toronto Faculty Association, the Graduate Student Union and Scientists for the Right to Know. 

The CBC will film the event!


INTERNATIONAL DAY of PROTEST For LGBTQ Rights - #TOwithRUSSIA Lights the Queer Torch!

(60) INTERNATIONAL DAY of PROTEST For LGBTQ Rights - #TOwithRUSSIA Lights the Queer Torch!

Yonge and Dundas, 8 pm Sunday Sept 8

We are so ready to make our own Olympics, make them Queer and make them right here in Toronto. And every Olympics needs a Torch so expect the flamiest queerest LGBTQ torch you've ever seen!
On Sunday, September 8th, the world will come together and take to the streets in protest!! Citizens will rally in cities across the globe: Rio, London, Berlin, Winnipeg, New York, Sydney and more, standing up against inequality and discrimination.

What better time to have a rally than when TIFF is welcoming the world ...S


Scientists for the Right to Know - Rally Sept 16, noon, Queen's park

Scientists for the Right to Know - Events
Rally: Stand Up for Science
Sept. 16, 2013, from 12-1 pm
In Toronto, we will assemble at 11:45 at the south part of Queen’s Park in the front of the legislature: there will be a few short speeches. Prof. Scott Prudham, President of the UofT Faculty Association will speak, we will hear a message from Nobel Prize winner Prof. John Polanyi, 3rd speaker TBA. We will march down University Ave. and back to Queen’s Park. The Raging Grannies will sing.

About Scientists for the Right to Know

In 2012, a Working Group of Science for Peace started to look into the muzzling of science and scientists in Canada. Muzzling is a broad process that may be carried out by governments, industry, universities, and others. However, we quickly realized that the current federal government is actually waging a war on basic science. While other Canadian governments have engaged in muzzling as well, we have never witnessed the type of systematic attack on basic science that is happening right now in Canada.

We therefore decided to focus at present on the muzzling of science on the part of the federal government. We also decided that we needed to find a means to engage the public at large. The focus of our work shifted, then, from researching the issue to advocating for unmuzzled science. It became clear that the work the group was envisaging would exceed the mandate of Science for Peace -  education. We decided to form a new organization frankly devoted to advocacy.

The inaugural meeting of Scientists for the Right to Know took place in April 2013. We are currently in the process of incorporating as a non-profit organization. Scientists for the Right to Know has been endorsed by the Canadian Federation of Students and by the Canadian Association for Professional Academic Librarians
and by OCUFA (see below).

Researchers at the University of Toronto have formed a new group in response to continuing government action on the freedom of information in Canada. The group called Scientists’ for the Right to Know states their mandate is “  to advocate for the free conduct, communication, publication and archiving of research and to resist the muzzling of science and of scientists.” 

The Canadian Association for Professional Academic Librarians fully endorses and supports the SRK mandate. As CAPAL has stipulated in the document  Academic Librarianship: A Statement of Principles we fully endorse eradicating discrimination, free enquiry and advancement of knowledge, uncensored and unbiased access to information and preserving knowledge for current and future generations.  We urge all our colleagues across Canada to show their support for the efforts of this group. Of particular interest is their timeline which shows the extent to which suppression of freedom of speech and information has been happening in different areas.

Creed - Human Rights Survey

Creed Human Rights Survey 
The Ontario Human Rights Commission (OHRC) is updating its 1996 Policy on Creed and the Accommodation of Religious Observances. The aim of this survey is to hear from individuals, religious and other community members, employers and other groups on what creed means, peoples’ experiences of discrimination based on creed, its root causes, as well as challenges and success stories for accommodating creed beliefs and practices.

For more detailed discussion of these and other issues, see Human rights and creed: emerging issues. Your responses to this survey will help us as we revise the policy.

NOTE: By submitting this survey, you are agreeing to our collection and use of your responses. The OHRC is committed to protecting your privacy and personal information. Survey responses will only be reported on in the aggregate to protect and maintain individual anonymity (i.e. no individuals or specific organizations will be identified in OHRC analysis and reporting of survey results). 


SCIENCE and GOD : DEBATE, Dan Barker and Dr. Sankara Sept 18, OISE
 Wed Sept 18, OISE, 9pm

Free for students, $10 at door for public.  See facebook page above for info (seems to be sponsored by the "One Network" - see the pdf, but not much other details).

Debate between,
Evangelist turned Atheist - Dan Barker
Nuclear Physicist turned Spiritual Teacher - Dr. Sankara

Until recently, this question was rhetorical; Since the 17th century's Age of Enlightenment, everyone knew that Science was no friend of God. But more recently as Scientists search for "God Particles", Quantum Physics points to a unified field and fractal geometry suggests, to some, "intelligent design" in our universe, the relationship between science and God is being re-examined.

What do you believe?

Join us for a captivating discussion between two of the world's most insightful thinkers on matters of science and spirituality as they try to answer one of the most important questions facing our world today.