3.
3 Surveillance and interception of communications
3.3.1 Metadata
Records
 Generated by public service providers (e.g. telecommunications and
internet services)
 Public authorities great interest in its availability
o Purpose: prevention, investigation and prosecution of serious
crime, including terrorism
Metadata
 Usually contain descriptive information about other data, like:
o Internet Protocol address associated with a computer from
which an individual had sent an email;
o List of telephone numbers which an individual dialed on a
particular day
o List of websites which an individual visited
 Being done by intelligence agencies
o A source of privacy concern
Terrorist
 Intelligence services collect metadata to identify terrorist networks
o Recruitment: social networks and social media
o Monitor individuals expanding their networks and posting
ideological messages on SM -> closer to identify terrorist groups
 Particular symbols as metadata
o Social groups use symbols to identify themselves and their cause
o Intelligent agents associate symbols to locate individuals who
support a terrorist cause
Society
 Learn about the mood in society
o Collecting information about the types of internet activities
individuals engage in
 Information used for terrorism prevention strategies
 US Poll: ¾ of adults opposed sharing their metadata to intelligence agency
3.3.1.1 Privacy concerns relating metadata
Government
 Gov’t argues that metadata collection attracts less protection under the
right to privacy than the direct interception of communications
o Reason: does not have communication
o Assertion is strongly contested by HR defenders
 Particular concerns
o Hold governments adequately accountable
 Metadata’s liquid nature (fluid and movable)
 Difficult to detect where the information
goes and how government organs use it
o States with strong HR protections acquire intelligence from
allies who gather information about individuals in violation of
the right to privacy including under their national laws
American Civil Liberties Organisation
 Advocated for the treatment of metadata on the same footing as content
under the auspices of the right to privacy
Mosaic Theory
 Misleading to distinguish between data and metadata
 Core of Theory: While one may learn little from one piece of information,
one can acquire an in-depth understanding about an individual’s activities
through combining multiple pieces of information contained in metadata
o Determine an individual’s ethnicity and relationship status based
on the location of that person’s mobile telephone
o Contacts on SM can reveal the individual’s interests
o Locations of mobile phones can predict where the individual in
question will travel in the future
Intelligence Gathering Tools
 Benefit to intelligence agencies and law enforcement officials
o Parliamentary Assembly of the Council of Europe questioned
their efficacy in terms of counter-terrorism prevention
 Enables government officials to learn a great deal from metadata
 Sift through vast amounts of data and organise it into categories
o Analysing small bank transactions to identify suspicious money
transfers to detect of terrorist financing activities
Collection of Metadata
 Reveal more information about an individual’s behaviour, preferences and
social relationships than an interception of the content of a single
communication
 See Digital Rights Ireland Ltd. v. Ireland
3.3.1.2. Concerns expressed by the UN and regional human rights systems

UNGA
 Adopted Resolution 68/167: Concern regarding the potential negative
consequences of such mass data surveillance capability and techniques
 Urged States to protect the right to privacy of individuals

HR Council
 Adopted a resolution to urge States to
o Respect and protect the right to privacy while countering
terrorism, including in the context of digital communication
o Adopt procedures, practices and legislation which complies
with international human rights standards regarding surveillance
of communications, their interception and the collection of
personal data

Office of the United Nations High Commissioner for Human Rights

 Mass surveillance programs which collect bulk information about
individuals to be arbitrary despite this legitimate aim
 Impact of such programs on the enjoyment of the privacy of the citizens to
be greater than the harm being averted

Recommendations
 Special Rapporteur and Parliamentary Assembly of the Council of Europe
o States should make certain information about surveillance
programs public, such as details regarding their regulatory
framework
 Joint Declaration on Freedom of Expression and the Internet
o Re-iterate basic norms regarding the treatment of internet data
 UN Special on the situation of human rights defenders
o Misuse of digital surveillance by some States in intimidating
political opponents, human rights defenders and journalists
o Violate right to privacy and democratic rights such as freedom of
opinion and expression
o Discriminatory, only target non-nationals