Will the right to hold an opinion win the battle against pervasive surveillance?

There are many messages to take away from UN Special Rapporteur David Kaye’s report on encryption and anonymity, but one that gave me an “aha!” moment was his analysis of human rights law on the right to hold opinions without interference. Specifically, it was his observation that the limitations and restrictions on the right to freedom of expression in the International Covenant on Civil and Political Rights (ICCPR) do not apply to the right to hold opinions, and that “… the mechanics of holding opinions have evolved …” such that “… holding opinions in the digital age is not an abstract concept limited to what may be in one’s mind”. For example, individuals’ views may be saved in browsing histories, email archives, etc.

David Kaye also highlights that the right to hold opinions extends to the right to form opinions. He expresses the view that mass and targeted surveillance systems “may undermine the right to form an opinion, as the fear of unwilling disclosure of online activity … likely deters individuals from accessing information, particularly where such surveillance leads to repressive outcomes”.

So far, the primary champion against pervasive surveillance has been the right to privacy, but unlike the right to hold an opinion without interference, the right to privacy is more vulnerable to interference, especially where matters of national interest are concerned. Such interference is confined by various requirements, e.g. must not be unlawful, must not be arbitrary, must be proportionate …, but, as we have previously observed, those international law requirements did not protect Internet users from pervasive surveillance.

Therefore, it may be time to complement ongoing efforts in the privacy space with closer scrutiny of the implications of online surveillance on individuals’ enjoyment of their right to form and to hold opinions on the Internet. Perhaps, the right to hold opinions can constrain what privacy cannot.

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