On March 1, 2019 the Global Justice Clinic at New York University School of Law submitted a briefing paper on the spyware industry to the UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression. GJC’s paper, “Attempted Digital Surveillance as a Completed Human Rights Violation: Why Targeting Human Rights Defenders Infringes on Rights,” responded to the Special Rapporteur’s call for submissions concerning the surveillance industry and human rights. The Special Rapporteur, Professor David Kaye, will present a report on this issue to the UN in October 2019.

For the past several years, GJC has partnered with NYU’s Bernstein Institute for Human Rights and Amnesty International to investigate legal accountability measures to address states’ digital surveillance of human rights defenders. This work has focused on companies involved in the development and sale of commercial spyware products used to target human rights defenders. A number of secretive companies have sold highly invasive spyware to countries despite their record of grave human rights abuse. Human rights defenders have been targeted time and again with these surveillance products. These attacks—whether completed or only attempted—have serious impacts on the rights and lives of defenders.

Despite these abuses, GJC’s research uncovered a gap regarding the application of international human rights law to attempted digital surveillance of human rights defenders, as opposed to completed surveillance. GJC’s briefing paper explains that attempted digital surveillance of a human rights defender is evidence of the unlawful targeting of that individual on the basis of their opinion. It not only gives the targeted individual a reasonable basis to fear that they are subject to surveillance; it also provides notice that existing due diligence frameworks, export control regimes, and other regulatory measures have failed to protect against human rights violations. Thus, when attempts to infect human rights defenders’ digital devices with commercial spyware are discovered, the targeted individuals should have the opportunity to seek protection and remedy, and such instances should prompt governments and companies to strengthen the safeguards against such abusive conduct.

GJC made this submission to underscore the need for further guidance on the prevention and remediation of such infringements of the rights to privacy and freedom of opinion and expression, and to encourage the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression to address these issues in his report on commercial spyware.

Read the full submission here.

Read more about the Bernstein Institute’s project on defending dissent and the rule of law.