In order to address issues arising out of rampant use of surveillance tools by governments that result in violating people’s fundamental right to privacy, and freedom of speech and expression, the United States Department of State has released ‘Guiding Principles on Government Use of Surveillance Technologies’ on March 30, 2023.
The guiding principles, designed using inputs from Freedom Online Coalition’s 36 Member States, elaborate on how surveillance tools are being misused by establishments to restrict the “right to access information” as well as exercise of basic freedoms. It also highlights that these surveillance systems often end up targeting vulnerable groups like journalists, activists, social workers, etc. and marginalised communities, indigenous groups, LGBTI persons, and the Black community among others.
The guiding principles mainly aim to address the use of the internet to suppress human rights, the use of video surveillance coupled with AI to spy on people without legal basis, and the use of “big data analytic tools” to “support the discriminatory enforcement of laws” and “enforce social and political control”.
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Why it matters:
The arbitrary use of facial recognition systems, CCTVs and other surveillance systems by the government and law enforcement agencies is affecting people’s right to privacy and freedom of movement. In many cases, media reports have highlighted how marginalised communities and minorities are becoming primary targets of surveillance mechanisms deployed by the state. In India, the law under which the authorities are establishing surveillance networks is not even clear. As governments are increasingly adopting sophisticated methods of monitoring people’s movement and data, there’s a need for a coordinated effort by digital rights organisations to resist these activities. Though not a legally-binding set of rules, this document serves as a reminder of criteria against which governments must evaluate their surveillance moves.
What are the guiding principles?
A. Appropriate legal protections:
- The department emphasises that surveillance tech must be deployed in accordance with domestic laws and international “obligations”, which aim to strengthen democratic values. “Lawfulness, necessity, proportionality, or reasonableness” are key to checking the arbitrariness of using surveillance tools.
- Violation of human rights and freedoms must be prevented while implementing such mechanisms. “Effective oversight, transparency, and redress processes should be clearly defined, reviewed for unintended consequences or misapplication, consistently practiced, and fairly enforced,” the statement adds.
- The department states that surveillance tech should not be used “to target individuals or members of a group solely based on race, color, gender, ethnicity, indigeneity, language, religion, age, national origin, disability, genetic information, social origin, sexual orientation, political opinion, or any other classification protected by law or on other grounds inconsistent with applicable domestic law or international obligations and commitments”.
- Further, the state needs to make efforts to “mitigate disparate impact” of “unintended bias” in surveillance tech right from the design and development stages. Additionally, such systems, including those using AI, must be evaluated periodically to check biases that can impact marginalised communities and vulnerable groups.
C. Oversight and Accountability: In order to prevent misuse of surveillance tools, governments must adopt “appropriate domestic oversight mechanisms, including human oversight” to ensure compliance with laws, procedures and policies. The State must also seek feedback from domain experts, civil society members, victims or survivors, etc. to record, understand the impact and monitor the outcomes of such surveillance methods to ensure the responsible use of such technologies.
The guidelines state that “Governments should clearly define the legal basis for using surveillance technology with transparency on the safeguards in place to prevent abuse or discriminatory uses.” They should also be transparent about the legal framework that supports the use of surveillance tech. It also adds that transparency mechanisms must “balance the interest of individuals and the public to be informed with the need to prevent the disclosure of information that would harm law enforcement, national security, or public safety objectives”.
E. Limitations on Data Scope and Collection:
The State must limit the amount and scope of data collected, and retain such data only for what is necessary to achieve legitimate objectives of public interest. The data collection methods must comply with rules on “safeguarding personal information and the confidentiality of communications”.
Importantly, the guidelines also note that, “Biometric tools such as fingerprint scans, DNA analytics, facial recognition, speech recognition, gait recognition, and iris scans should be used only when lawful and appropriate in the circumstances balancing the interests at stake, giving due regard to the context of collection and use”.
F. Secure Post-Acquisition Data Handling:
- The guidelines call for procedures to check if the data acquired by governments through surveillance systems is appropriately used, processed, retained, aggregated and disseminated in accordance with the purpose for which it was acquired. “Personal data acquired or generated…including disparate personal data elements that are not sensitive separately but become sensitive once combined, should only be shared in compliance with applicable laws, policies, and regulations,” the statement adds.
- Further, private entities participating through a government contract should be “subject to appropriate safeguards, including requirements for disclosure of breaches, reporting misuse, penalties for misuse of data by public or private actors, whistleblower protections, and reasonable data deletion schedules”.
G. Respect for Human Rights, including privacy:
Surveillance tech must be deployed with appropriate mechanisms in place to safeguard people’s fundamental freedoms, including “the right to be free from unlawful or arbitrary interference with one’s privacy, and respect for bodily autonomy, including of women and girls in all their diversity, and LGBTI persons.”
The guidelines state that governments must ensure that the systems used for surveillance purposes are secure, effective and compliant with the law. They must undergo testing and evaluation to prevent harm. “Governments should strive for testing conditions in a modelled environment to mirror as closely as possible the conditions in which the system is anticipated to be deployed or has been deployed. They should be regularly assessed to ensure their continued integrity for the purpose,” the statement adds.
Lastly, people or government officials involved in “policy development, procurement, operation, oversight, and accountability of surveillance systems” need to be well-informed about the lawful use and “technical limitations of the technology”. They must also know best practices for data protection and must have access to necessary legal advice for protecting fundamental rights, including privacy.
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