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information by state and non-state actors; regulatingthe commercialisation of dual-use technology(i.e. goods that can be used for both legitimate andillegitimate purposes, such as spyware and communicationintercepting devices); rejecting anyevidence obtained that infracted on human rights,such as the illegal interception of communications;and punishing the most outrageous acts of intrusionson privacy. This legislative approach providesa certain level of legal certainty, but has somelimitations, mainly the fact that it does not grantcomprehensive protection.Countries with a modern constitutional frameworkhave adopted a different path for protectinghuman rights in domestic forums. They have incorporatedinternational instruments on human rightsinto their domestic constitutions and made thoserights enforceable against both state and non-stateactors. This is the case in Latin American countries,in which there are a number of court decisionsbased on constitutional grounds that nullify dataretention laws, grant privacy in online communications,prevent rights-abusive processing of personaldata, and limit video surveillance to proportionalcircumstances. This constitutional protection of humanrights grants comprehensiveness, althoughit is usually followed by legislative acts that detailconcrete implications in more complex cases.The internet has become crucial for our lives,and it will be even more important as more peopleconnect, accessing more services, and for longerperiods of time. The internet is, however, an environmentessentially controlled by private actors: fromentities that assign technical sources 14 to those thatadopt technical standards, from those that provide14 Such as IP addresses and domain names.the backbones and telecommunication services, tothose that offer access and content. The fact thatthe internet is under private control should not bean excuse for preventing the realisation of humanrights in the online environment and, therefore,states are required to promote and protect humanrights against the abuse of non-state actors. Thisdoes not prevent the adoption of an internationalinstrument on corporate human rights responsibility,particularly for cases in which a governmentcannot or does not want to enforce this through domesticremedies. 15The actual problem:Human rights enforcementInternational human rights law provides rulesapplicable to a system for global mass onlinesurveillance. What the case of the NSA shows,instead, is a different problem in current internationallaw. There is a loophole in the enforcementof human rights with respect to those recalcitrantcountries that fail to adjust their domestic lawsand policy measures to human rights standards. 16Domestic mechanisms of enforcement may help, ifavailable, but they are insufficient when resolvingissues based on mere parochial law standards, ora narrow-minded legal approach. There are certainmechanisms available in international forums, butthey tend to be political rather than legal in nature.Unfortunately, in the case of the NSA, the US hasnot recognised the jurisdiction of any internationalcourts. Therefore, it seems unfeasible that any legallybinding decision on the matter of whether asystem for global mass online surveillance violatesinternational human rights law will be made.15 United Nations General Assembly, Resolution on elaborationof an international legally binding instrument on transnationalcorporations and other business enterprises with respect tohuman rights, UN Doc. A/HRC/26/L.22/Rev.1, 25 June 2014.16 Louis Henkin, International Human Rights Standards in NationalLaw: The Jurisprudence of the United States, in Benedetto Confortiand Francesco Francioni (eds.), Enforcing International HumanRights in Domestic Courts (Martinus Nijhoff Publishers, 1997), pp.189-205.The harms of surveillance to privacy,expression and associationJillian YorkElectronic Frontier Foundationwww.eff.orgFreedom is the freedom to say that two plus twomake four. If that is granted, all else follows.George Orwell, 1984On 5 June 2013, the Washington Post and theGuardian simultaneously published documentsthat would rock the world. The documents, leakedby ex-National Security Agency (NSA) contractor EdwardSnowden, were not the first disclosures aboutthe United States’ vast surveillance complex, buthave arguably had the most impact.Before last year, awareness of digital surveillancein the US – and indeed, in much of the world– was minimal. Disclosures made by WikiLeaks in2011 can be credited for an uptick in reporting onsurveillance 1 – particularly in the Middle East – butdid little to inspire research on the societal impactof it.The knowledge, or even the perception, of beingsurveilled can have a chilling effect. A 2012industry study conducted by the World EconomicForum found that in high internet penetration countries,a majority of respondents (50.2%) believethat “the government monitors what people do onthe Internet.” At the same time, only 50% believethat the internet is a safe place for expressing theiropinions, while 60.7% agreed that “people who goonline put their privacy at risk.” 2A member survey conducted by writers’ organisationPEN American Center in December 2013discovered that, since the publication of the firstNSA leaks, 28% of respondents have “curtailed oravoided social media activities,” while another 24%have “deliberately avoided certain topics in phone1 CNet. (2011, December 1). Wikileaks disclosure shines light onBig Brother. CBS News. www.cbsnews.com/news/wikileaksdisclosure-shines-light-on-big-brother2 Dutton, W., Law, G., Bolsover, G., & Dutta, S. (2013). TheInternet Trust Bubble: Global Values, Beliefs, and Practices.Davos: World Economic Forum. www3.weforum.org/docs/WEF_InternetTrustBubble_Report2_2014.pdfor email conversations.” Perhaps even more worryingly,a full 16% have avoided writing or speaking oncertain topics. 3Surveillance affects us in myriad ways. It infringeson our personal freedoms, submits us tostate control, and prevents us from progressing asa society.The equal rights to privacy, speechand associationWhen we talk about surveillance, it often followsthat we speak of the importance of privacy, of beingfree from observation or disturbance, frompublic attention. In the US, privacy is a fundamentalright, enshrined in the Fourth Amendment to theConstitution.Of course, this is no coincidence – underKing George II, the American colonisers foundthemselves at the mercy of writs of assistance,court-issued orders that allowed the King’s agentsto carry out wide-ranging searches of anyone, anytime;a precursor to the modern surveillance state. 4Once issued, an individual writ would be valid forthe King’s entire reign, and even up to six monthspast his death.It was only after the death of King George IIthat a legal challenge was mounted. When a customsofficer in Boston attempted to secure newwrits of assistance, a group of Boston merchants,represented by attorney James Otis, opposed themove. Otis argued that the writs placed “the libertyof every man in the hands of every petty officer,”an argument that founding father John Adams laterclaimed “breathed into this nation the breath oflife.” It was from this societal shift that the FourthAmendment was born.The opposition to surveillance, however, isnot borne only out of a desire for privacy. In theUnited States, the First Amendment – that which3 The FDR Group. (2013). Chilling Effects: N.S.A. Surveillance DrivesU.S. Writers to Self-Censor. New York: PEN America. www.pen.org/sites/default/files/Chilling%20Effects_PEN%20American.pdf4 Snyder, D. (n/d). The NSA’s “General Warrants”: How the FoundingFathers Fought an 18th Century Version of the President’s IllegalDomestic Spying. San Francisco: Electronic Frontier Foundation.https://www.eff.org/files/filenode/att/generalwarrantsmemo.pdf28 / Global Information Society Watch Thematic reports / 29