Digital surveillance in democracies: ‘Who will guard the guardians?’

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Whether it is using contact tracing to limit Covid transmission or facial recognition to identify protestors, new surveillance technologies have become a key tool for our governments. Law professor Frédéric Bernard at the University of Geneva explains how digital surveillance is incompatible with democracy.

Social media, personal data collection and even targeted advertisements display just how much of our daily lives can be easily watched in the digitised world. What does this mean for human rights? Do our security concerns outweigh our right to digital privacy? Can democratic governments be trusted with increasingly invasive surveillance technology? These are a few of the questions that will be discussed at the series of conferences Comprendre le Numerique, or Understanding the Digital World, organised by the University of Geneva this week.

Guest speaker Frédéric Bernard,  specialist on  human rights,  and the fight against terrorism, spoke to Geneva Solutions about the balance between surveillance and human rights ahead of a panel .

GS News: What made you interested in new surveillance technologies?

Frédéric Bernard: My interest in new technologies is derived from the challenges they pose towards human rights. New technologies can provide incredible opportunities to bolster ideas like freedom of expression or freedom of protest, but it can also produce new threats against human rights, particularly against our right to a private life. Our private lives have become extremely connected. It is very easy for other people, governments and private entities to know what we are doing now.

Historically, especially during the enlightenment period, human rights were conceived as a tool for protection against the state. However, as new technologies are created and governed by private entities, we don’t have the framework to actually deal with private companies or governments who violate our human rights.

GS News: How can governments protect citizens against human rights abuses by private entities?

FB: You have two possibilities. Either you have to ask them to respect human rights in the places these companies operate or you have to enforce regulation in the company’s country of origin. The first is what is happening in the EU. If big companies want to stay in Europe they will have to comply with EU data regulation. But very often countries in which companies operate don't have the strength or the money to enforce these rules on large corporations. Here the solution would be to force them to comply with the rules of the country that gave them life.

From my perspective, these are the two options. Of course, you could also hope for new international treaties to take into account private entities, but they usually take a very long time to be discussed, debated, passed in international organisations, and then finally be ratified by individual states.

GS News: How can democracies regulate the use of surveillance technologies, and protect human rights?

FB: One of the main problems of state secret surveillance is that it is supposed to be a secret. Though this surveillance will only work if it is a secret, in my opinion this is a big part of the problem. How do you control something that is designed to be hidden? Quis custodiet ipsos custodes? – in Latin, who will guard the guardians?

Even if you have safeguards or independent authorities, most of the information that has become public over the last fifteen years shows that there is no real control over state surveillance. How do you actually know that the system of safeguards is working,  that it has teeth? It is only when suddenly the media reveals something that we can really find out what's going on. Often this is the kind of information many people even in the government knows about.

This raises a very fundamental question: are secret surveillance techniques actually compatible with the rule of law or democracy?

GS News: Isn’t surveillance necessary? How can it be made compatible with the democratic framework?

FB: I am not sure surveillance can actually be set up in a way that will entirely be respectful to a state governed by law. When you use surveillance technology you are actually trying to intervene earlier in the chronological development of a situation. Usually with the criminal code, there is a threshold that needs to be surpassed. You need to have the beginning of something wrong being committed before surveillance methods can be deployed.

Now, with digital surveillance methods we have a tendency to try to preempt everything, a little bit like the movie Minority Report. To use surveillance, not only in addition to existing security measures, but to preempt any factual process I think is very dangerous.

GS News: Why is it dangerous?

FB: Because our democracies are based on the idea that, on the whole, human beings are good, which is why we recognise and protect human rights against state interference. Everyone can express their opinions freely, they can criticise the government, they can meet in the streets and they have the right to a private life in democracies.

In totalitarian regimes this is different. The main idea is that there is threat everywhere, and you have to fight against that threat. In a democracy, which recognises individual rights, the foundation is different. Otherwise the system makes no sense. Why recognise areas of freedom if you're sure that people are bad and will abuse these areas of freedom?

GS News: Do you think the Russian invasion of Ukraine has created a heightened fear and an increased acceptance of surveillance?

FB: I think it is a bit early to assess the impact of the Russian invasion on surveillance. But for instance, concerns about terrorism has been one of the main driving forces behind the extension of surveillance since the beginning the 21st century – since September 2001 to be precise.

GS News: Do you think the governments around the world are moving towards more mass surveillance?

FB: I think we are, and I think people don’t really mind it that much. People seem to think that they are not doing wrong online, and they have no real problems if people are watching what they are doing. But this is a dangerous attitude. There is no way of knowing if you are really doing everything right or not. Sometimes I wonder if the fight for one’s private life is lost because people don’t consider this a priority. When there was the debate about WhatsApp and Facebook merging, many wanted to leave these platforms and join others. But how many people actually did that?

It is hard to fight to uphold the right to privacy if no one is convinced it is worth fighting for. No system can stay in place if no one cares to save it. I am a bit pessimistic on this. We have accepted to share a lot of our private lives without really minding the consequences, or even thinking of the consequences.

GS News: Why do you think people are more accepting of surveillance now?

FB: There are a lot of security concerns. A lot of laws enacted in the past twenty years in technology and surveillance have been motivated, or were presented to be motivated as a tool against terrorism. But there is also the idea that just because technology  is advancing we must simply use it, that technology will solve everything we have not been able to solve on our own.

There is this idea that we must put everything online, like in Switzerland all our medical files are online, and no one worries about data breaches. When the breach actually happens, everyone is surprised.

GS News: How can we create a balance between new technology and our right to privacy?

FB: Most human rights do not work in black and white. Right to privacy is not like the absolute prohibition of torture, which from a legal perspective cannot be justified in any way. If state surveillance touches the right to privacy, it must meet a set of conditions. Does the state have a legal basis to watch people in secret? Does the state have a legitimate aim? Is the breach of the right to privacy proportional to the good the state is trying to attain? These conditions are recognised in the European Convention on Human Rights, for example.

The European courts have already said that states such as the UK have put in place programs of mass surveillance that do not meet these conditions set forth by the European convention. The courts will tell you that you need adequate safeguards from the beginning to the end of the surveillance, it requires a precise legal basis, and an authority that is independent from the government to overlook. But then we’re back to who guards the guardians.

So actually, there is a legal human rights framework that can help balance new technologies with our rights. This framework is not absolute prohibition, it simply requires the government to take into account human rights before imposing new methods.

GS News: How do you think surveillance will evolve in the next ten years? How will our legal systems keep up?

FB: Surveillance technology has evolved a lot in the last few years, and it will continue to evolve. We will probably rely more on automatisation and less on human beings actually using the machines. This triggers new dangers, such as hidden bias in algorithms. For example, facial recognition softwares are noted to be biassed towards some skin types and against other skin types. We think because it is a machine it will be neutral, but it been programmed by humans and in a discriminatory way.

The way I see it, technology will continue to evolve and will continue to create new challenges for human rights. I think the existing frameworks are quite precise. Of course technology has evolved, but they have been here for some time now. There have been decisions by international and national courts. If governments want to do things correctly, they have all the tools they need.


Geneva Solutions is a partner of the conference cycle "Parlons numérique", organised between October 2021 and May 2022 by the University of Geneva.