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Freedom of assembly under attack: General and indiscriminate surveillance and interference with internet communications

Published online by Cambridge University Press:  18 March 2021

Ilia Siatitsa
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Abstract

Every day across the world, as people assemble, demonstrate and protest, their pictures, their messages, tweets and other personal information are amassed without adequate justification. Arguing that they do so in order to protect assemblies, governments deploy a wide array of measures, including facial recognition, fake mobile towers and internet shutdowns. These measures are primarily analyzed as interferences with the right to privacy and freedom of expression, but it is argued here that protest and other assembly surveillance should also be understood as an infringement of freedom of assembly. This is necessary not only to preserve the distinct nature of freedom of assembly that protects collective action, but also to allow for better regulation of surveillance and interference with internet communications during assemblies.

Keywords

freedom of assemblyprotestdigital agemass surveillanceinterferenceinternet communications
Type
Business and digital technologies in humanitarian crises
Information
International Review of the Red Cross , Volume 102 , Issue 913: Digital technologies and war , April 2020 , pp. 181 - 198
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press on behalf of the ICRC.

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Footnotes

*

Many thanks to Valentina Cadelo and Tomaso Falchetta for their input on the latest version of this article. The views expressed in this article reflect those of the author.

References

1 African Charter on Human and Peoples’ Rights, 1520 UNTS 245, 27 June 1981 (ACHPR), Art. 11; American Convention on Human Rights, San José, 22 November 1969 (ACHR), Art. 15; International Covenant on Civil and Political Rights, 999 UNTS 171, 16 December 1966 (ICCPR), Art. 21; European Convention for the Protection of Human Rights and Fundamental Freedoms (as amended by subsequent protocols), CETS No. 5, Rome, 4 November 1950 (ECHR), Art. 11; Universal Declaration of Human Rights, UNGA Res. 217A, 10 December 1948 (UDHR), Art. 20(1).

2 UN Office of the High Commissioner for Human Rights (UN Human Rights), “Press Briefing Note on Protests and Unrest around the World”, 25 October 2019, available at: www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25204&LangID=E (all internet references were accessed in January 2021).

3 See, among many, Zeynep Tufekci, Twitter and Tear Gas: The Power and Fragility of Networked Protest, Yale University Press, New Haven, CT, 2017, p. 29.

4 “Protest” and “assembly” are used hereinafter almost interchangeably, though they do not have the exact same meaning. On freedom of assembly, see the sources cited in above note 1.

5 Human Rights Committee, General Comment No. 37, “Article 21: Right of Peaceful Assembly”, UN Doc. CCPR/C/GC/37, 27 July 2020 (General Comment 37), para. 12.

6 While the physical gathering of persons used to be considered a key component of an assembly, in the digital age, there is an increasing consensus that assembly includes all forms of collective expression, even if occurring only in the digital/online space. See ibid., para. 13; Clément Voule, Rights to Freedom of Peaceful Assembly and of Association: Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, UN Doc. A/HRC/41/41, 17 May 2019.

7 C. Voule, above note 6, para. 23.

8 See Hamilton, Michael, “The Meaning and Scope of ‘Assembly’ in International Human Rights Law”, International and Comparative Law Quarterly, Vol. 69, No. 3, 2020, p. 527CrossRefGoogle Scholar.

9 See further below on the relationship between assembly and expression. See also ibid., p. 528.

10 See, among others, UN Human Rights, Impact of New Technologies on the Promotion and Protection of Human Rights in the Context of Assemblies, including Peaceful Protests: Report of the United Nations High Commissioner for Human Rights, UN Doc. A/HRC/44/24, 24 June 2020. But even earlier, see HRC Res. 15/21, “The Rights to Freedom of Peaceful Assembly and of Association”, 30 September 2010; Maina Kiai and Jeff Vize, “Three Years after Tunisia: Thoughts and Perspectives on the Rights to Freedom of Assembly and Association from United Nations Special Rapporteur Maina Kiai”, Journal of Global Ethics, Vol. 10, No. 1, 2014.

11 The present article does not cover violent assemblies or situations described by the International Committee of the Red Cross as “other situations of violence”. Nor does it cover situations of armed conflict (whether international or non-international) to which international humanitarian law applies.

12 The use of force to respond to peaceful protests is not covered by this article.

13 See analysis below in the third part of this article. States have a positive obligation to take reasonable and appropriate measures to facilitate, protect and enable lawful demonstrations to proceed peacefully. See, inter alia, HRC Res. 44/20, “The Promotion and Protection of Human Rights in the Context of Peaceful Protests”, 17 July 2020, para. 4; HRC Res. 25/38, “The Promotion and Protection of Human Rights in the Context of Peaceful Protests”, 28 March 2014, para. 4; HRC Res. 24/5, “The Rights to Freedom of Peaceful Assembly and of Association”, 26 September 2013, preambular para. 8. See also van Dijk, Pieter, van Hoof, Fried, van Rijn, Arjen and Zwaak, Leo (eds), Theory and Practice of the European Convention on Human Rights, 4th ed., Intersentia, Antwerp, 2006, pp. 836–837Google Scholar.

14 General Comment 37 underlines that the right to privacy may be infringed upon even when an assembly takes place in public: see General Comment 37, above note 5, para. 62. A similar approach has been followed by the European Court of Human Rights (ECtHR), which has recognized in its jurisprudence that individuals have a reasonable expectation of privacy, despite the fact that their actions might have taken place in public. See, among others, ECtHR, Uzun v. Germany, Appl. No. 35623/05 (Fifth Section), 2 September 2010, paras 48–53.

15 In this context, the concept of “a person of interest” in protests has been expanding to include also “influencers” of protests – a term which has been borrowed from marketing and which includes persons whose voice seems to attract attention and mobilize people. See Dencik, Lina, Hintz, Arne and Carey, Zoe, “Prediction, Pre-Emption and Limits to Dissent: Social Media and Big Data Uses for Policing Protests in the United Kingdom”, New Media & Society, Vol. 20, No. 4, 2018, p. 1445CrossRefGoogle Scholar.

16 UN Human Rights, above note 10, para. 24; Human Rights Council, Joint Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association and the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions on the Proper Management of Assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 75.

17 On the extent of intelligence that can be acquired by collecting, analyzing and combining information, see Privacy International, “Social Media Intelligence”, 23 October 2018, available at: https://privacyinternational.org/explainer/55/social-media-intelligence. See also L. Dencik, A. Hintz and Z. Carey, above note 15.

18 They may also spread false information by impersonating organizers, or even directly endanger protesters by using, inter alia, a technique called “boxing” whereby they maliciously publish personal information in order to encourage physical harm to organizers and protesters. UN Human Rights, above note 10, para. 27.

19 Council of Europe, Report by the Committee of Experts on Cross-Border Flow of Internet Traffic and Internet Freedom on Freedom of Assembly and Association on the Internet, 10 December 2015.

20 Hacking is understood here as an act or series of acts which interfere with a system, causing it to act in a manner unintended or unforeseen by the manufacturer, user or owner of that system. Hacking can present grave and unique threats to privacy and security. For further information, see Privacy International, “Hacking Necessary Safeguards”, 2018, available at: https://privacyinternational.org/demand/government-hacking-safeguards.

21 Access Now, “OHCHR Call for Input: The Promotion and Protection of Human Rights in the Context of Peaceful Protests”, 2019, available at: www.accessnow.org/cms/assets/uploads/2020/06/OHCHR-Call-for-Input-Use-of-ICTs-in-Protests-October-15.pdf.

22 “Sentiment analysis” is used here to describe technology that aims to analyze various data, such as language, text and biometric data, in order to deduce the emotions of individuals. The term is also applied to “voice of the customer” materials such as reviews and survey responses.

23 IMSI catchers are known by a multitude of different names, including cell site simulators, cell grabbers, mobile device identifiers and man-in-the-middle devices, or by their specific brand names, such as StingRay or DRTbox. Jennifer Valentino-DeVries, “How ‘Stingray’ Devices Work”, Wall Street Journal, 21 September 2011, available at: https://blogs.wsj.com/digits/2011/09/21/how-stingray-devices-work/.

24 See Christopher Soghoian and Stephanie K. Pell, “Your Secret Stingray's No Secret Anymore: The Vanishing Government Monopoly over Cell Phone Surveillance and Its Impact on National Security and Consumer Privacy”, Harvard Journal of Law & Technology, Vol. 28, No. 1, 2014; Adrian Dabrowski, Nicola Pianta, Thomas Klepp, Martin Mulazzani and Edgar Weippl, “IMSI-Catch Me If You Can: IMSI-Catcher-Catchers”, Proceedings of the 30th Annual Computer Security Applications Conference, ACM Press, 2014, available at: http://dl.acm.org/citation.cfm?doid=2664243.2664272.

25 “Facial recognition technology” is used here to describe any system that has been built to analyze images of individuals for the purpose of identifying them. Such systems can scan distinct, specific facial features, such as face shape, to create a detailed biometric map of a face. UN Human Rights, above note 10, para. 30.

26 The images in a watch list may come from a range of sources and do not just include images of people suspected of criminal wrongdoing. Shaun Walker, “Face Recognition App Taking Russia by Storm May Bring End to Public Anonymity”, The Guardian, 17 May 2016, available at: www.theguardian.com/technology/2016/may/17/findface-face-recognition-app-end-public-anonymity-vkontakte. One company, called Clearview AI, trained its facial recognition system by using images found on people's social media profiles, without their consent. The Clearview AI facial recognition tool enabled police to link protesters to their respective social media accounts, making it harder for protesters to remain anonymous. Harmon Leon, “This Controversial Company Is Selling Your Social Media Photos to Law Enforcement”, The Observer, 2 November 2020, available at: https://observer.com/2020/02/clearview-ai-social-media-photos-law-enforcement/.

27 Such technology combines data from mobile phones, license plate readers and real-time arrest records. In aggregate, this data makes it faster and easier for police to track and arrest suspects.

28 See Privacy International, “Mobile Phone Extraction”, available at: https://privacyinternational.org/sites/default/files/2019-02/Explainers-MPE.pdf.

29 Also known as kill switches, network shutdowns or blackouts. See Access Now, “#KeepItOn: The Problem”, available at: www.accessnow.org/keepiton/#problem. See also HRC Res. 32/13, “The Promotion, Protection and Enjoyment of Human Rights on the Internet”, 1 July 2016.

30 David Kaye, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, UN Doc. A/HRC/35/22, 30 March 2017, para. 8, n. 6.

31 Human Rights Committee, Concluding Observations on the Fifth Periodic Report of Cameroon, UN Doc. CCPR/C/CMR/CO/5, 30 November 2017, para. 41.

32 D. Kaye, above note 30, para. 8, n. 6, and para. 11. See also HRC Res. 32/13, above note 29, para. 10.

33 D. Kaye, above note 30, para. 8.

34 Access Now, Targeted, Cut Off, and Left in the Dark: The #KeepItOn Report on Internet Shutdowns in 2019, 2019, available at: www.accessnow.org/cms/assets/uploads/2020/02/KeepItOn-2019-report-1.pdf.

35 The UN High Commissioner for Human Rights recently reported that “[b]locking of entire websites of human rights organizations and political opposition parties has become increasingly common in many parts of the world, including in countries of the Middle East and North Africa region”. UN Human Rights, above note 10, para. 23.

36 Sanja Kelly, Sarah Cook and Mai Truong (eds), Freedom on the Net 2012: A Global Assessment of Internet and Digital Media, Freedom House, 2012, pp. 164–176, available at: https://freedomhouse.org/sites/default/files/resources/FOTN%202012%20-%20Full%20Report_0.pdf.

37 Article 19, The Right to Protest Principles: Background Paper, 2016, p. 33, available at: www.article19.org/data/files/medialibrary/38581/Protest-Background-paper-Final-April-2016.pdf.

38 Disruption of protests through misinformation and attempts at disruptions of large-scale and public mobilization using the internet have been openly admitted by some States. Gayathry Venkiteswaran, Freedom of Assembly and Association Online in India, Malaysia and Pakistan: Trends, Challenges and Recommendations, APC IMPACT, 2016, p. 41, available at: www.apc.org/sites/default/files/FOAA_online_IndiaMalaysiaPakistan.pdf.

39 Victims of such arrests include journalists, human rights defenders (often the “faces” of protests) and other civilians – anyone that organizes, participates or reports on protests. Article 19, above note 37, pp. 33–34.

40 Ibid., p. 33.

41 Ibid., p. 33.

42 For instance, the Spanish Criminal Code was amended to include a provision criminalizing distribution or public dissemination, through any means, of messages inciting the commission of any crime of disturbance of the peace. Nils Muižnieks, Report by Nils Muižnieks, Commissioner for Human Rights of the Council of Europe, Following His Visit to Spain from 3 to 7 June 2013, CommDH(2013)18, 2013, para. 130. See also Council of Europe, above note 19, p. 14.

43 Article 19, above note 37, pp. 25–26; Alex Comninos, Freedom of Peaceful Assembly and Freedom of Association and the Internet, APC Issue Paper, 2012, p. 7, available at: www.apc.org/sites/default/files/cyr_english_alex_comninos_pdf.pdf.

44 UN Human Rights, above note 10.

45 UDHR, Art. 12; ACHR, Art. 11; ICCPR, Art. 17; ECHR, Art. 8.

46 UDHR, Art. 19. See also ACHPR, Art. 9; ACHR, Art. 13; ICCPR, Art. 19; ECHR, Art. 10.

47 ECtHR, Catt v. The United Kingdom, Appl. No. 43514/15, Judgment (First Section), 24 January 2019. In another case, the Court stated that “Article 10 [freedom of expression] is to be regarded as a lex generalis in relation to Article 11 [freedom of assembly], a lex specialis, so that it is unnecessary to take it into consideration separately”. ECtHR, Ezelin v. France, Appl. No. 11800/85, Judgment, 26 April 1991, para. 35.

48 Community Court of Justice of ECOWAS, Amnesty International Togo and Others v. The Togolese Republic, Judgment, 25 June 2020. Similarly, in December 2012, the ECtHR ruled unanimously that the blanket blocking of entire platforms, in this case the hosting service Google Sites, violates freedom of expression provisions in Article 10 of the ECHR. ECtHR, Ahmet Yıldırım v. Turkey, Appl. No. 3111/10, Judgment (Second Section), 18 December 2012, paras 66–68.

49 ECtHR, Ezelin, above note 47.

50 See, among others, ECtHR, Öllinger v. Austria, Appl. No. 76900/01, Judgment (First Section), 29 June 2006, paras 52–53.

51 See, inter alia, HRC Res. 42/15, “The Right to Privacy in the Digital Age”, 26 September 2019, preambular para. 30.

52 See, inter alia, General Comment 37, above note 5; UNGA Res. 73/179, “The Right to Privacy in the Digital Age”, 17 December 2018; HRC Res. 44/20, above note 13; C. Voule, above note 6; UN Human Rights, above note 10.

53 General Comment 37, above note 5, para. 62 (emphasis added).

54 This lex specialis nature is mentioned in ECtHR, Ezelin, above note 47.

55 The Human Rights Committee found the right to freedom of assembly to be irrelevant if one is acting alone. Human Rights Committee, Patrick Coleman v. Australia, Communication No. 1157/2003, UN Doc. CCPR/C/87/D/1157/2003, Views, 10 August 2006, para. 6.4.

56 One of the distinctive criteria noted by the ECtHR is that in the exercise of the right to freedom of assembly the participants would be seeking not only to express their opinion, but to do so together with others. See, among others, ECtHR, Navalnyy v. Russia, Appl. Nos 29580/12 and 4 others, Judgment (Grand Chamber), 17 February 2004, para. 101. See also M. Hamilton, above note 8, pp. 525–526, 534–535.

57 As the ECtHR has underlined, “the participation of citizens in the democratic process is to a large extent achieved through belonging to associations in which they may integrate with each other and pursue common objectives collectively”. ECtHR, Gorzelik and Others v. Poland, Appl. No. 44158/98, Judgment (Grand Chamber), 17 February 2004, para. 92. See also HRC Res. 38/11, “The Promotion and Protection of Human Rights in the Context of Peaceful Protests”, 16 July 2018, p. 11.

58 Most recently, UNGA Res. 73/179, above note 52, para. 9; HRC Res. 42/15, above note 51, preambular para. 12.

59 “[I]n the digital age, technical solutions to secure and to protect the confidentiality of digital communications, which may include measures for encryption, pseudonymization and anonymity, can be important to ensure the enjoyment of human rights, in particular the rights to privacy, to freedom of expression and to freedom of peaceful assembly and association.” UNGA Res. 73/179, above note 52, preambular para. 26 (emphasis added).

60 See Privacy International, Submission to the Office of the United Nations High Commissioner for Human Rights on the Promotion and Protection of Human Rights in the Context of Peaceful Protests, October 2019, available at: https://tinyurl.com/2tcqlbn8.

61 ICCPR, Art. 21; ECHR, Art. 11(2).

62 See, among others, Human Rights Committee, Zinaida Shumilina et al. v. Belarus, Communication No. 2142/2012, Views, 28 July 2017; Human Rights Committee, Pavel Levinov v. Belarus, Communication No. 2082/2011, Views, 14 July 2016.

63 Privacy International, “IMSI Catchers: Facilitating Indiscriminate Surveillance of Protesters”, 19 June 2020, available at: https://privacyinternational.org/news-analysis/3948/imsi-catchers-facilitating-indiscriminate-surveillance-protesters.

64 “Such attempts to interfere with the freedom of expression unlawfully pursue an illegitimate objective of undermining the right to peaceful protest”. David Kaye, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, UN Doc. A/HRC/29/32, 22 May 2015, para. 53.

65 Aharon Barak, “Rational Connection”, in Proportionality: Constitutional Rights and their Limitations, Cambridge University Press, Cambridge, 2012, pp. 303–316.

66 “General and indiscriminate surveillance measures” here describes systems or technologies that collect, analyze and/or generate data on large numbers of people instead of limiting surveillance to individuals about which there is reasonable suspicion of wrongdoing. See, for instance, Court of Justice of the European Union, Tele2 Sverige AB v. Post- och telestyrelsen (C-203/15) and Secretary of State for the Home Department v. Tom Watson ao (C-698/15), Judgment, 21 December 2016.

67 “Silencing Opposition Is ‘Not the Solution’, UN Rights Chief Says as Internet Blackout Looms in DR Congo”, UN News, 17 December 2016, available at: https://news.un.org/en/story/2016/12/548052-silencing-opposition-not-solution-un-rights-chief-says-internet-blackout-looms.

68 On the contrary, the Special Rapporteur has underlined that the Internet may be used to mitigate public safety concerns and help restore public order. For instance, internet communications are key to disseminating accurate information during a crisis. D. Kaye, above note 64, para. 14.

69 Annual Activity Report 2013 to the Parliamentary Assembly of the Council of Europe: Report of the Thirteenth Sitting, AS (2014) CR 13, 8 April 2014.

70 UN Human Rights, above note 10, para. 22.

71 Surveillance of protesters should only be conducted on a targeted basis, and only when there is reasonable suspicion that the targets are engaging in or planning to engage in serious criminal offences, based on principles of necessity and proportionality and with judicial supervision. C. Voule, above note 6, para. 57.

72 While the notion of “reasonable expectation of privacy” is found in US law, the jurisprudence of the ECtHR, among others, also seems to recognize the concept, albeit not with an identical understanding. See, for example, John Ip, “The Legality of ‘Suspicionless’ Stop and Search Powers under the European Convention on Human Rights”, Human Rights Law Review, Vol. 17, No. 3, 2017.

73 General Comment 37 reiterates that “[t]he wearing of face-coverings or other disguises by assembly participants, such as hoods or masks, or taking other steps to participate anonymously may form part of the expressive element of a peaceful assembly, serve to counter reprisals, or to protect privacy, including in the context of new surveillance technologies”. General Comment 37, above note 5, para. 60. Depending on how facial recognition technology develops, it could interfere with this possibility. A company has already claimed to be in the process of developing technology that even bypasses masks. Khari Johnson, “Facial Recognition Is No Match for Face Masks, but Things Are Changing Fast”, VentureBeat, 8 April 2020, available at: https://venturebeat.com/2020/04/08/facial-recognition-is-no-match-for-face-masks-but-things-are-changing-fast/.

74 UN Human Rights, above note 10, para 53(h).

75 The 2020 Annual Report of the UN High Commissioner for Human Rights confirmed as much, even though it didn't go as far as concluding that blanket measures as such amount to a violation of freedom of assembly. UN Human Rights, above note 10. See also HRC Res. 44/20, above note 13, para. 26.

76 Before a protest, if a person uses social media to support or register with the protest, the police will collect this information; during a protest, if a person takes their mobile phone with them, which most would do, they may be surveilled by drones and IMSI catchers, or if they do not take their mobile, they may be surveilled by facial recognition technology, stop and search of passers-by or the use of a credit card or travel card; and finally, organizers and other “persons of interest” (not suspected of having committed a crime) are often kept under surveillance long after the protest.

77 The ECtHR in the Catt case referred to Principle 2 of Recommendation R(87)15 that regulates the use of personal data in the police sector, which states that “the collection of data on individuals solely on the basis that they belong to particular movements or organisations which are not prescribed by law should be prohibited unless absolutely necessary or for the purposes of a particular inquiry”. ECtHR, Catt, above note 47, para. 124. See also ECtHR, Segerstedt-Wiberg and Others v. Sweden, Appl. No. 7124/09, Judgment (Second Section), 6 June 2006, para 107.

78 See the sources cited in above note 16.

79 General Comment 37, above note 5, para. 60.

80 ECtHR, Kudrevičius and Others v. Lithuania, Appl. No. 37553/05, Judgment (Grand Chamber), 15 October 2015, para. 158; ECtHR, Djavit An v. Turkey, Appl. No. 20652/92, Judgment (Third Section), 20 February 2003, para. 57.

81 See, inter alia, HRC Res. 44/20, above note 13, para. 4; HRC Res. 25/38, above note 13, para. 4; HRC Res. 24/5, above note 13, preambular para. 8. See also P. van Dijk et al., above note 13, pp. 836–837.

82 ECtHR, Oya Ataman v. Turkey, Appl. No. 74552/01, Judgment (Second Section), 5 December 2006, para. 39.

83 Human Rights Committee, General Comment No. 31, “The Nature of the General Legal Obligation Imposed on States Parties to the Covenant”, UN Doc. CCPR/C/21/Rev.1/Add.13, 26 May 2004 (General Comment 31), para. 6.

84 General Comment 37, above note 5, para. 34.

85 See, inter alia, in relation to privacy-related cases, ECtHR, Big Brother Watch and Others v. the United Kingdom, Appl. Nos 58170/13, 62322/14, 24960/15, Judgment (First Section, pending referral to the Grand Chamber), 13 September 2018, para. 308; ECtHR, Roman Zakharov v. Russia, Appl. No. 47143/06, Judgment (Grand Chamber), 4 December 2015, para. 232.

86 The UN Human Rights Council has underlined that “the possibility of using communications technology securely and privately … is important for the organization and conduct of assemblies”. HRC Res. 44/20, above note 13, preambular para. 22. See also the sources cited in above note 16.

87 Inter alia, the Human Rights Council reiterated “the importance for all States to promote and facilitate access to the Internet and international cooperation aimed at the development of media and information and communications facilities in all countries”. HRC Res. 24/5, above note 13, preambular para. 8.

88 General Comment 37, above note 5, para. 28; see also the obligation to facilitate protests at para. 24.

89 Ibid., para. 28.

90 See above on IMSI catchers.

91 Among others, see ECtHR, Plattform “Ärzte für das Leben” v. Austria, Appl. No. 10126/82, Judgment, 21 June 1988.

92 Human Rights Council, above note 16, para. 76.

93 ECtHR, Big Brother Watch, above note 85, para. 495. See also Bart van der Sloot, “Is the Human Rights Framework Still Fit for the Big Data Era? A Discussion of the ECtHR's Case Law on Privacy Violations Arising from Surveillance Activities”, in Serge Gutwirth, Ronald Leenes and Paul De Hert (eds), Data Protection on the Move: Current Developments in ICT and Privacy/Data Protection, Springer, Dordrecht, 2016, p. 422.

94 In the context of secret surveillance, the ECtHR has found it “unacceptable that the assurance of the enjoyment of a right guaranteed by the Convention could be thus removed by the simple fact that the person concerned is kept unaware of its violation”. ECtHR, Klass and Others v. Germany, Appl. No. 5029/71, Judgment (Plenary), 6 September 1978, para. 36. In the context of freedom of expression, Special Rapporteur David Kaye has noted that “[u]nnecessary and disproportionate surveillance may undermine security online and access to information and ideas. Surveillance may create a chilling effect on the online expression of ordinary citizens, who may self-censor for fear of being constantly tracked. Surveillance exerts a disproportionate impact on the freedom of expression of a wide range of vulnerable groups, including racial, religious, ethnic, gender and sexual minorities, members of certain political parties, civil society, human rights defenders, professionals such as journalists, lawyers and trade unionists, victims of violence and abuse, and children.” David Kaye, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, UN Doc. A/HRC/32/38, 11 May 2016, para. 57.

95 Frank La Rue, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, UN Doc. A/HRC/23/40, 17 April 2013, para. 52.

96 General Comment 31, above note 83, para. 6. In a different context, the ECtHR has also observed that there exists “the risk that a system of secret surveillance set up to protect national security may undermine or even destroy democracy under the cloak of defending it”. ECtHR, Zakharov, above note 86, para. 232. UN Human Rights has similarly observed that “any limitation to the right to privacy must not render the essence of the right meaningless and must be consistent with other human rights”. UN Human Rights, The Right to Privacy in the Digital Age: Report of the Office of the United Nations High Commissioner for Human Rights, UN Doc. A/HRC/27/37, 30 June 2014, para. 23.

97 ICCPR, Art. 2; ECHR, Art. 17; UDHR, Art. 30.

98 ECtHR, Navalnyy, above note 56, para. 100 (emphasis added).

99 Ibid., para. 100.

100 The Court therefore concluded that the interference with the applicant's right to freedom of peaceful assembly was not “necessary in a democratic society”. ECtHR, Galstyan v. Armenia, Appl. No. 26986/03, Judgment (Third Section), 15 November 2007, para. 117; see also ECtHR, Ashughyan v. Armenia, Appl. No. 33268/03, Judgment (Third Section), para. 93.

101 See arguments brought forward by Big Brother Watch, Privacy International, Amnesty international and seven other organizations in Big Brother Watch and Others v. UK, pending before the Grand Chamber of the ECtHR at the time of writing. ECtHR, Big Brother Watch, above note 85.