How does covert surveillance breach the Universal Declaration of Human Rights?

The use of covert surveillance techniques for political purposes, whether conducted by the public or private sector, conflicts with the fundamental human rights set out for all humanity in the Universal Declaration of Human Rights 1948.

While the Declaration is a well-worded, widely accepted and precious document, it’s promise will only be realised when the citizens of all nations become aware of their universal entitlements under it. Where citizens remain unaware, human rights abusers are free to continue to cause harm without fear of being held to account for their actions. Critically, citizens must lobby their own governments to ensure that their human rights are protected under their domestic laws.

The UN’s 2015 publication of the Declaration states that it “promises to all the economic, social, political, cultural and civic rights that underpin a life free from want and fear. They are not a reward for good behavior. They are not country-specific, or particular to a certain era or social group. They are the inalienable entitlements of all people, at all times, and in all places — people of every colour, from every race and ethnic group; whether or not they are disabled; citizens or migrants; no matter their sex, their class, their caste, their creed, their age or sexual orientation.”

This post lists the Articles of the Declaration relevant to the subject of covert surveillance, so that victims of such activities may understand that the perpetrators are in breach of their human rights, and may also be acting illegally, depending on local laws. Determining whether actions are illegal lies beyond the scope of this article and the results will vary from nation to nation.

Article 1 – The spirit of brotherhood

“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”

Simply put, spying on citizens for political purposes is not in the spirit of the brotherhood of humankind.

Article 2 – Human rights are universal

“Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.”

Everyone’s human rights are protected in principle under the Declaration.

Article 7 – Equality before the law

“All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.”

Victims of surveillance are entitled to legal protections, as are all other citizens. Yet in many juridictions, domestic laws are at variance with the Declaration, either by absence or design. It is the citizens’ perogative to demand that local laws reflect the Articles of the Declaration.

Article 8 – Remedy under consitution or law

“Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.”

The challenge here is for the citizenry to determine which Tribunals or Courts of law are relevant in their specific state or nation. Complications may arise when state or federal laws conflict with the Universal Declaration of Human Rights. For example, Governments often have laws which grant special powers to their respective intelligence agencies. Significant opportunities exist for legal reform to limit such powers and ensure accountability for the actions of entities undertaking covert surveillance.

In Australia, if a citizen has a grievance regarding the actions of any members of the Australian Intelligence Community (which includes the ONA, ASIO, ASIS, ASD, DIO and AGO), lodging a complaint with the Inspector-General who oversees their legal compliance is an appropriate place to start.

Article 11 – The presumption of innocence

“(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.”

The presumption of innocence is a key principle to consider when pondering moral and legal cases for and against covert surveillance. Covert surveillance activities include such acts as the infiltration of groups or organisations, the placement of recording or listening devices (including on private property) and the collection of data from personal devices and computers. I would personally argue that in the case of the lives of non-criminal citizens, no covert surveillance activities are justifiable if the presumption of innocence is acknowledged as a unalienable human right. Similarly, organisations which pose no threat of unlawful conduct should not be considered justifiable targets for infiltration by covert surveillance agents. However, at present infiltration is commonplace and in cases where criminal offences by individuals have been prosecuted, the human resources invested are grossly disproportionate to the crimes committed. For example, an animal rights activist who opposed fox hunting in the UK found himself romantically engaged with an undercover policewoman after she infiltrated his group.

Article 12 – Privacy is a human right

“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

This Article is critical to the subject of covert surveillance and human rights violations, but requires interpretation and discussion. For example, a party responsible for the infiltration of a group or organisation, or the placement of recording or listening devices on private property might argue that simply listening, observing and reporting might not constitute “interference”. But how might this argument hold up, once a victim becomes aware that he, she or they have been subjected to covert surveillance?

In my view, such an argument doesn’t hold water. Once an individual becomes aware that he or she is under surveillance, then that individual has an increased tendency towards suspicion and analysis, for which the awakened subject pays a heavy psychological tax. Feelings of trust and betrayal, anger and entrapment become intensified- none of which would have been occurred without the original act of covert surveillance, and its subsequent discovery. Where a subject suffers physically or psychologically as a result of the actions of another person or organisation, how could that fail to qualify as “interference with his privacy, family, home or correspondence”?  Victims of covert surveillance have told many stories of psychological damage suffered when they discovered that people they entered romantic relationships with, or even married or had children with, were working undercover, often under a false name and with a political objective. The UK’s ongoing “SpyCops” scandal illustrates this perfectly, and the pains experienced by its victims will likely be felt for the rest of their lives and in some cases, the lives of their children too.

The careers of several “outed” undercover police provide useful examples of how political policing interferes with the lives of civilians. Some of these are explored in the book “Undercover: The True Story of Britain Secret Police”, published by Guardian Books in 2012. Some additional examples are linked below.

Article 19 – Freedom of expression without interference

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

The Universal Declaration of Human Rights clearly stipulates the individual’s right to “freedom of opinion and expression without interference”. It follows that this should include any form of social organisation seeking to participate in government processes or to lobby for a political cause. Yet such organisations are commonly targeted for infiltration and interference. One of the most extreme and widely recognized examples of this strategy at play is the sinking of the Rainbow Warrior. Greenpeace’s flagship vessel, the Rainbow Warrior was protesting French nuclear weapons testing in the Pacific during the 1980’s. A French intelligence operation firstly infiltrated the organisation, then used the information it obtained to plan and execute the sinking of the vessel. Photographer Fernando Pereira, an innocent man, was killed in the operation and the legacy of the mission and its aftermath has been widely documented in books, TV dramas, films and even a text-based computer game.

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Documentary filmmaker, public interest researcher and full-time surveillance target

Since May 2016, I’ve become acutely aware that I am under surveillance, day and night. My privacy has been stolen from me and I’m not happy about it.

Since I am a law-abiding citizen with no criminal record, I can only assume that those responsible for tracking my movements and associations are doing so for a combination of political and/or economic reasons. While I can understand the private sector investing in the surveillance of politically active people in this way, I have deep ethical objections to the use of any public resources in support of such a campaign. I suspect that many other concerned Australian citizens would share this sentiment. I won’t speculate as to who might be coordinating these efforts, but I will say that it is comprehensive. I suspect the techniques used have been honed over many decades, including through the monitoring of progressive social and environmental movements, including the opposition to the Vietnam war, apartheid, nuclear weapons and the animal rights movement.

If you’re shaking your head in disbelief, or flatly dismissing my claim as delusional, I can assure you that I have seen enough and corroborated with others to have total confidence in my own observations and analyses. I know other people who have had similar experiences and made similar observations during their investigative, whistle-blowing or political work. While the surveillance I am presently experiencing itself is passive (ie. bystanders placed in locations everywhere I go, augmented by the monitoring of my communications) the effect is pervasive, intrusive and effectively inescapable. My only refuges are private residences and the psychological impact is pronounced. My life has been studied to such an extent that all my movements are either anticipated or intercepted, even when travelling in regional areas.

Perhaps I have my own curiosity to blame?

Back in 2011, I began full-time work on my first documentary feature film, Cuttlefish Country (soon to be completed). Through this work I have explored the history of industrial development in the Spencer Gulf region of South Australia, and I have come to understand the politics surrounding major industrial development. I have also gained insights into relationships between major corporations and the public sector. I have discovered entrenched cultures of secrecy, enshrined in law, which in my opinion, betray the public interest.

In response, I have lodged over 100 Freedom of Information requests, across a range of topics with South Australia’s Department of Premier and Cabinet in 2016 alone. I have also lodged further requests with several Federal departments and agencies. You can see these on the website RightToKnow.org.au, where my applications and their results are published into the public domain I have been fortunate enough to have been supported by a small but very generous group of donors. They have assisted me with paying the administrative costs associated with obtaining the deliberations and decision-making processes of various government bodies and releasing them into the pubic domain. I refer to this work as public interest research.

In 2015, I became a member of the press gang attending to the Nuclear Fuel Cycle Royal Commission in South Australia, as an independent documentary filmmaker. I also participated in the Commission’s processes as a South Australian citizen, writing submissions during the establishment of its Terms of Reference, during the Commission itself, and more recently to the South Australian parliament, where a joint committee is considering the Commission’s findings.

Since May 2016, when the Royal Commission handed over its report to the Government of South Australia, the monitoring of my activities became too obvious to falsely interpret. I’ve had cars lurking in my street, cars parked on roadsides with drivers in them anticipating or logging my movements, and a rolling stock of faces everywhere I go… from supermarkets, to cafes and public parks.

So here I am… documentary filmmaker, public interest researcher and full-time surveillance target.

I can no longer find peace in any public place… but this has only strengthened my resolve to press on with my inquiries.

And of course, I’ll continue to respond creatively. Here’s a poem I wrote yesterday, inspired by the events of 2016:

TOO FAMILIAR

I see the way you look at me
with your cover story
and your hollow eyes.

Playing it cool
behind shades
that reflect attention
and hide your inhumanity.

You tell me you're not the type
but I'm no fool.
There is no 'type'.

Man, woman
young, old
silent, smug.
Bold, arrogant, precocious.

Shopper, jogger,
cyclist, driver,
gardener, fisher,
shadow lurker.

I've seen it all,

including your soul:

ghoulish, twisted, perfect.

You log the lives of innocents
drawing their light
into your darkness
to feed the vampires.

I mentioned your eyes
now darting sideways,
hand on face, a stretch, a yawn
a twitching leg.
Unfamiliar ground.
You want to run, compelled to stay.

I'm a body to you, a target.
I get that.

It's nothing personal.

You have a job to do.

Dan Monceaux, 2 October 2016.

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