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3 Surveillance and interception of communications Gov’t argues that metadata collection attracts less protection under the
right to privacy than the direct interception of communications
3.3.1 Metadata o Reason: does not have communication
o Assertion is strongly contested by HR defenders
Records Particular concerns
Generated by public service providers (e.g. telecommunications and o Hold governments adequately accountable
internet services) Metadata’s liquid nature (fluid and movable)
Public authorities great interest in its availability Difficult to detect where the information
o Purpose: prevention, investigation and prosecution of serious goes and how government organs use it
crime, including terrorism o States with strong HR protections acquire intelligence from
allies who gather information about individuals in violation of
Metadata the right to privacy including under their national laws
Usually contain descriptive information about other data, like:
o Internet Protocol address associated with a computer from American Civil Liberties Organisation
which an individual had sent an email; Advocated for the treatment of metadata on the same footing as content
o List of telephone numbers which an individual dialed on a under the auspices of the right to privacy
particular day
o List of websites which an individual visited Mosaic Theory
Being done by intelligence agencies Misleading to distinguish between data and metadata
o A source of privacy concern Core of Theory: While one may learn little from one piece of information,
one can acquire an in-depth understanding about an individual’s activities
Terrorist through combining multiple pieces of information contained in metadata
Intelligence services collect metadata to identify terrorist networks o Determine an individual’s ethnicity and relationship status based
o Recruitment: social networks and social media on the location of that person’s mobile telephone
o Monitor individuals expanding their networks and posting o Contacts on SM can reveal the individual’s interests
ideological messages on SM -> closer to identify terrorist groups o Locations of mobile phones can predict where the individual in
Particular symbols as metadata question will travel in the future
o Social groups use symbols to identify themselves and their cause
o Intelligent agents associate symbols to locate individuals who Intelligence Gathering Tools
support a terrorist cause Benefit to intelligence agencies and law enforcement officials
o Parliamentary Assembly of the Council of Europe questioned
Society their efficacy in terms of counter-terrorism prevention
Learn about the mood in society Enables government officials to learn a great deal from metadata
o Collecting information about the types of internet activities Sift through vast amounts of data and organise it into categories
individuals engage in o Analysing small bank transactions to identify suspicious money
Information used for terrorism prevention strategies transfers to detect of terrorist financing activities
US Poll: ¾ of adults opposed sharing their metadata to intelligence agency
Collection of Metadata
3.3.1.1 Privacy concerns relating metadata Reveal more information about an individual’s behaviour, preferences and
social relationships than an interception of the content of a single
Government communication
See Digital Rights Ireland Ltd. v. Ireland
3.3.1.2. Concerns expressed by the UN and regional human rights systems
UNGA
Adopted Resolution 68/167: Concern regarding the potential negative
consequences of such mass data surveillance capability and techniques
Urged States to protect the right to privacy of individuals
HR Council
Adopted a resolution to urge States to
o Respect and protect the right to privacy while countering
terrorism, including in the context of digital communication
o Adopt procedures, practices and legislation which complies
with international human rights standards regarding surveillance
of communications, their interception and the collection of
personal data
Recommendations
Special Rapporteur and Parliamentary Assembly of the Council of Europe
o States should make certain information about surveillance
programs public, such as details regarding their regulatory
framework
Joint Declaration on Freedom of Expression and the Internet
o Re-iterate basic norms regarding the treatment of internet data
UN Special on the situation of human rights defenders
o Misuse of digital surveillance by some States in intimidating
political opponents, human rights defenders and journalists
o Violate right to privacy and democratic rights such as freedom of
opinion and expression
o Discriminatory, only target non-nationals