Annex
to Recs
Areas of Current International and National Debate on Lawful Interception:
• Many countries require a higher degree of authorisation for access to
communications content than they do to access communications data or metadata.
Metadata / communications data can give more insight into a person’s life than
was historically the case with simple telephone call and duration information, for
example, mobile location data. This has resulted in an active debate about whether
this lower level of protection that is given to communications data or metadata is
still appropriate. Some countries have recommended the consideration of a third
category
of
data,
in
addition
to
communications
content
and
metadata/communications data. This proposed third category would give greater
protection to certain types of communications data considered more sensitive,
such as websites visited and a user's location from a smartphone.
• The leaks from Edward Snowden regarding the surveillance activities of the US
National Security Agency (NSA) and the UK Government Communications
Headquarters (GCHQ) have put the spotlight on “mass surveillance.” There is no
international agreement on what this term means in different jurisdictions. At the
UN level there is serious concern about communications surveillance authorised
on such a broad and indiscriminate basis. This runs counter to the core concept of
the protection of privacy that requires justification to be made on a case-by-case
basis.
• The issue of whether nationals of a particular country should enjoy higher
protection than non-nationals is a current debate. The International Covenant on
Civil and Political Rights (ICCPR) by its terms provides protection to all, without
distinction based on nationality.
• Laws that authorise extra-territorial surveillance or the interception of
communications in foreign jurisdictions are problematic, for example because of an
individual’s inability to know if they are subject to surveillance and therefore
potentially seek redress.
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PAGE
ANNEX TO THE RECOMMENDATIONS:
LAWFUL INTERCEPTION AND GOVERNMENT ACCESS TO USER DATA