include malware 363 that infects a target’s computer and switches on webcams and microphones on devices, and zero-days 364, which exploits vulnerabilities in a computer application to enable hacking of communications, therefore reducing digital security for many others using the same application. Companies selling these technologies often try to portray these products as having the same status as statutorily mandated (and regulated) ‘lawful intercept’ functionality – often simply because they are sold to a government purchaser. However experience has shown that some governments are using these technologies quite specifically because they are not regulated and to avoid following lawful interception procedures. 365 With these tools, surveillance is not limited to those within a country’s borders, which puts exiles or the diaspora overseas at risk of intrusive surveillance. 366 Companies who sell this type of technology are increasingly being targeted by law suits and other legal actions. 367 Concerns about Surveillance and the ICT Sector Under international human rights law 368, individuals are protected from any unlawful and arbitrary interference with their privacy, family, home, or correspondence. The act of surveillance, whether physical (such as a house search) or of a person’s communications (such as monitoring phone calls and emails) is an inherently intrusive act and risks violating a person’s privacy. In addition, surveillance of person’s communications can limit the exchange of information and ideas resulting in a ‘chilling effect’ on freedom of expression, as people are less likely to express themselves freely if they know they are being observed or monitored. Intercepting communications is under particular scrutiny by international organisations, civil society groups and governments due to the impact of surveillance on privacy and other human rights such as the right to receive and impart information. 369 The same technology that can help law enforcement prosecute criminals may also be misused by authorities, such as when specific groups (opposition parties, human rights defenders, ethnic, religious or sexual minorities) are placed under surveillance for the purpose of intimidating, persecuting and silencing them. There is evidence in some countries that the technology is being used to track and detain political dissidents as part of a wider pattern of intimidation, often with negative consequences or harm to the individuals. 370 363 Software that is created and used to gain access to private computer systems, disrupt computer operations and/or gather sensitive information. Malware includes computer viruses, “Trojan horse” software and “worms”. 364 An attack on vulnerability in a computer application or operating system that developers have not yet addressed. 365Citizen Lab, “Shedding Light on the Surveillance Industry: The Importance of Evidence-based, Impartial Research“ (20 December 2013). 366 For example, there is evidence that the government of Ethiopia is using surveillance technology to target the diaspora overseas who may be critical of the government. Ethiopians living in the UK, US, Norway and Switzerland have been targeted with malware, resulting in an illegal wire-tapping case in the US. See Electronic Frontier Foundation (EFF), Kidane Vs Ethiopia (last accessed August 2015) and Reporters Without Borders “Enemies of the Internet“ (2014). 367 For examples of lawsuits and other official complaints, see OECD Watch and the Business and Human Rights Resource Centre. 368 International Covenant on Civil and Political Rights, Article 17. 369 See for example the Global Conference on Cyberspace 2015, the Global Commission on Internet Governance, the work of the United Nations and international civil society organisations such as Privacy International, Electronic Frontier Foundation, Citizen Lab, Access, and many local civil society organisations. 370 See for example: Freedom House, “Freedom on the Net“ (2013) details a particular example from Sudan: CHAPTER 4.4: SURVEILLANCE – LAWFUL INTERCEPTION & OTHER SURVEILLANCE METHODS 169 4 4.4