Item 3: Resolution Entitled “The right to privacy in the digital age,” A/HRC/28/L.27
Explanation of Position by the Delegation of the United States of America
Human Rights Council 28th Session
Ambassador Keith Harper
As Prepared for Delivery
Geneva, March 26, 2015
The United States appreciates the efforts of Brazil, Germany, Austria, Lichtenstein, Mexico, Norway, and Switzerland to facilitate the negotiations on this resolution.
We join consensus on today’s resolution because it reaffirms human rights the United States has long championed domestically and internationally – privacy rights and the rights to freedom of expression, peaceful assembly, and association– as set forth in the International Covenant on Civil and Political Rights (the ICCPR) – and the exercise of those rights online and offline. We have long viewed these rights as pillars of democracy.
The establishment of a mandate on privacy rights comes at a critical time. Today, human rights defenders, civil society activists, and ordinary citizens in all parts of the world increasingly face repression, censorship, reprisals, and arbitrary or unlawful interference with privacy. We support the mandate because of the need to strengthen respect for the right to protection from unlawful or arbitrary interference with privacy, in all contexts, as stated in the ICCPR.
The mandate established by this resolution is broad, encompassing issues related to privacy rights in all situations and contexts. We read the term “digital age” as a broad reference to the prevailing technologies of the era in which we live. The term is not limited to any particular technology. Nor does it limit the scope of this resolution or work of the Special Rapporteur to infringements on privacy rights via any particular type of technology or solely to technology-based infringements on privacy rights. We further note that human rights should not be limited to applying in a certain age but that they are universal, indivisible and applicable in all ages.
We understand this resolution to be consistent with longstanding U.S. views regarding the ICCPR, including Articles 2, 17, and 19, and interpret it accordingly. Further, we reiterate that under Article 17 of the ICCPR, the standard as to whether any interference with privacy is permissible is whether it is lawful and not arbitrary. We welcome the resolution’s endorsement of this key concept. An interference with privacy must be reasonable given the circumstances. Article 17 does not impose a standard of necessity and proportionality; such concepts are derived from certain regional jurisprudence, are not broadly accepted internationally, go beyond that which is required by the text of Article 17, and are not supported by the travaux of the treaty.
We hope the Special Rapporteur will help promote respect for the right to protection from arbitrary or unlawful interference with privacy. We look forward to working together to achieve this important goal.