Across the world right now, states and big businesses are cracking down on dissent and preventing human rights defenders (HRDs) from carrying out their work. HRDs are threatened using a range of tactics and tools. Shielded, and often proactively aided, by repressive laws across countries, these tactics of repression are carried out with virtual impunity. Those is power are learning from one another. Importing and applying these tactics of repression in their local contexts has imposed a chilling effect on the ability of HRDs to expose human rights violations. One such tactic that occupies a prominent space in government playbooks across the world is that of surveillance.

In an atmosphere where HRDs are demonized and openly labeled as “foreign agents”, “anti-nationals”, or “terrorists”, states are often able to justify surveillance of HRDs in the name of ‘national security’. Surveillance- whether done offline or online- is a growing threat that HRDs have had to contend with for some decades now. However, with the advent of new and more sophisticated technology, coupled with repressive laws, the threat of targeted surveillance has become even more urgent.

Added to this, is the threat posed by powerful new actors on the scene- private surveillance companies. Governments are increasingly contracting the services of the private digital surveillance industry to develop insidious technology for the targeted digital surveillance of HRDs. This technology is used to track, monitor and intimidate human rights defenders, journalists, and political dissidents. These frighteningly intrusive spyware tools are designed to stealthily spy on the victim’s computer or phone and continuously monitor communications and steal private information and files. This surveillance has been known to lead to arbitrary detention, extrajudicial killings and torture. The threat is so grave that the UN Special Rapporteur on Freedom of Opinion and Expression has called for a global moratorium on the sale of private surveillance technology.

The activities of these companies go directly against their responsibilities under International Human Rights standards. The UN Guiding Principles on Business and Human Rights require companies to ensure robust due-diligence to prevent their products being used to violate human rights and to remedy any harms they contribute to.

The Shadowy Surveillance Industry

Companies operating in this profitable market for the export of surveillance technology have become dangerous actors responsible for exacerbating threats against HRDs. Companies such as NSO Group in Israel and Luxembourg, Finfisher in UK and Germany and Hacking Team in Italy are just some of the players in this secretive yet highly profitable industry.

Both the governments and the companies selling to them claim that that the technology is only used for lawful purposes, such as against terrorists and criminals. However, mounting evidence of their misuse tells a different story. Civil society organizations, including Amnesty International, have uncovered targeted campaigns against HRDs, which use technology that is marketed by many of these commercial surveillance companies.

For instance, in 2018, NSO Group’s technology has also been used to target an Amnesty International staff member who was campaigning against violations by the Saudi Arabian government. Many of these countries that have been able buy surveillance technology from these companies have dismal human rights records. For instance, NSO Group’s software has been used to attack HRDs journalists and lawyers in Mexico, HRDs in UAE, and Saudi Arabian dissidents residing in the UK and Canada.

Little is known about this industry, which operates from the shadows despite repeated requests for more transparency. Due to weak regulatory and legal oversight, these companies are able to freely sell their technology to authoritarian regimes that use it to track and monitor HRDs. Demanding accountability from these entitles that are shrouded in secrecy is particularly difficult. Very often, these companies hide behind arguments of ‘national security considerations’ or ‘confidentiality clauses’ to keep information on their activities out of the public domain. Little is known about the companies’ financial flows and corporate structures. Many of them do not disclose data on exports licensing agreements with countries in which they operate and have no known provisions for conducting human rights due diligence. There appear to be no satisfactory provisions for remedy either.

This goes directly against the UN Guiding Principles for Business and Human Rights, which understandably emphasize transparency, without which victims lack the tools to even know about – let alone seek accountability for – these human rights violations.

Targeted Surveillance and the Shrinking Space for Dissent

An added challenge is that it is virtually impossible for HRDs to prove the existence of surveillance, either because of technical hurdles or because its use is covert. However, even where targeting cannot be proven, the fact of living under the constant threat of possible surveillance can constitute a human rights violation in itself.

Regardless of whether the attempt at surveillance is successful or not, targeting of HRDs creates a chilling effect on their ability to continue their work without interference. This has a widespread damaging effect on communities and societies, causing HRDs to self-censor out of fear, and refrain from exercising their rights to freedom of expression, association and peaceful assembly. This is compounded by the threat of prosecution as a result of these practices, which diverts HRDs’ energy and resources to fighting judicial proceedings. In many instances, the threat of surveillance also has a detrimental effect on mental health.

For instance, in Azerbaijan, HRDs under the threat of surveillance have been forced to flee their home and find it hard to communicate with their loved ones out of fear that they too will be targeted. In Uzbekistan, even after HRDs who have been targeted by cyber attacks have left their homes, they have remained targets of surveillance campaigns. This effectively means that HRDs have had to live in a constant state of fear, perpetually looking over their shoulders and feeling a sense of impending danger wherever they go. It is clear that surveillance is a highly effective way of discouraging or preventing HRDs from dissenting and exposing violations.

Targeting of HRDs for their work using digital surveillance technology is unambiguously unlawful under international human rights law. Unlawful surveillance violates the rights to freedom of expression and opinion, of association and peaceful assembly, and the right to privacy. HRDs have the right to hold opinions without interference and to be protected against arbitrary and unlawful interference with their privacy. In order to comply with international human rights law, any interference by the state with these human rights must be lawful, necessary, proportional, and legitimate. States are also required to ensure that individuals whose rights have been violated have access to remedy.

Despite the existence of these international laws and standards, states and private companies have been able to buy and use spyware freely and without any provision for accountability. There is an urgent need to disrupt this trend of states using privately manufactured surveillance equipment to target HRDs. The longer these companies and the states that do business with them evade scrutiny and skirt their human rights responsibilities, the faster the space for carrying out human rights work shrinks.