156. The laws that authorize the interception of communications must establish clearly and
precisely the reasons the State can invoke to request that interception, which can only be
authorized by a judge.568 Additionally, must be established by law safeguards pertaining to
the nature, scope, and duration of the surveillance measures; the facts that could justify these
measures, and the authorities competent to authorize them, carry them out, and supervise
them.569 The law must be clear with regard to the possible remedies for abuses committed in
the exercise of those powers.570
157. (…) In the case of State surveillance activities—on the Internet or in any other sphere—
reasons of national security and the fight against crime or organized crime tend to be
invoked. The Office of the Special Rapporteur has maintained that when national security is
invoked as a reason for monitoring personal data and correspondence, in order to prevent
discretionary interpretations the law must clearly specify the criteria to be applied in
determining the cases in which these types of limitations are legitimate, and it must be
careful to define that concept precisely. In particular, the Office of the Special Rapporteur has
asserted that the concept of national security cannot be interpreted haphazardly and must
be defined from a democratic perspective.571
158. (…) Even today, it has been reported that national security reasons tend to be invoked
to place human rights defenders, journalists, members of the media, and activists under
surveillance, or to justify excessive secrecy in the decision-making processes and
investigations tied to surveillance issues.223 Clearly, this kind of interpretation of the
“national security” objective cannot be the basis for the establishment of surveillance
programs of any kind, including, naturally, online communications surveillance programs.572
159. In any event, in order for an online communications surveillance program to be
appropriate, States must demonstrate that the limitations to the rights to privacy and
freedom of expression arising from those programs are strictly necessary in a democratic
society to accomplish the objectives they pursue.
162. Given the importance of the exercise of these rights in a democratic system, the law must
authorize access to personal data and communications only under the most exceptional
circumstances defined in the law. When fairly open-ended grounds such as national security
568 United Nations. General Assembly. Report of the Special Rapporteur
on the promotion and protection of the right to freedom of opinion
and expression, Frank La Rue. A/HRC/23/40. April 17, 2013. Para. 81. Available for consultation at:
http://ap.ohchr.org/documents/dpage_e.aspx?m=85
569 United Nations Special Rapporteur on the Protection and Promotion of the Right to Freedom of Opinion and Expression and Special
Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights. June 21, 2013. Joint Declaration on
surveillance programs and their impact on freedom of expression. Point 8.
570 United Nations. General Assembly. Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion
and expression, Frank La Rue. A/HRC/23/40. April 17, 2013. Para. 81. Available for consultation at:
http://ap.ohchr.org/documents/dpage_e.aspx?m=85
571 IACHR. Annual Report 2009. Annual Report of the Office of the Special Rapporteur for Freedom of Expression. Chapter III (InterAmerican Legal Framework of the Right to Freedom of Expression). OEA/Ser.L/V/II. Doc. 51. December 30, 2009. Para. 76 et seq; IACHR.
Annual Report 2010. Annual Report of the Office of the Special Rapporteur for Freedom of Expression. Chapter III (Access to Information
on Human Rights Violations). OEA/Ser.L/V/II. Doc. 5. March 7, 2011. Para. 4, 12 et seq.; United Nations Special Rapporteur on the
Protection and Promotion of the Right to Freedom of Opinion and Expression and Special Rapporteur for Freedom of Expression of the
Inter-American Commission on Human Rights. June 21, 2013. Joint Declaration on surveillance programs and their impact on freedom of
expression. Point 9.
572 United Nations. General Assembly. Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion
and expression, Frank La Rue. A/HRC/23/40. April 17, 2013. Para. 60. Available for consultation at:
http://ap.ohchr.org/documents/dpage_e.aspx?m=85; United Nations Special Rapporteur on the Protection and Promotion of the Right
to Freedom of Opinion and Expression and Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human
Rights. June 21, 2013. Joint Declaration on surveillance programs and their impact on freedom of expression. Point 10 and 12; IACHR. Annual
Report 2009. Annual Report of the Office of the Special Rapporteur for Freedom of Expression. Chapter II (Evaluation of the State of
Freedom of Expression in the Hemisphere). OEA/Ser.L/V/II. Doc. 51. December 30, 2009. Para. 135 et seq.; IACHR. Annual Report 2010.
Annual Report of the Office of the Special Rapporteur for Freedom of Expression. Chapter II (Evaluation of the State of Freedom of
Expression in the Hemisphere). OEA/Ser.L/V/II. Doc. 5. March 7, 2011. Para. 140 et seq.; IACHR. Democracy and Human Rights in
Venezuela. Chapter VI (The Right to Life, to Humane Treatment, and to Personal Liberty and Security). OEA/Ser. L/V/II. Doc. 54.
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