eff-human-rights
The Electronic Frontier Foundation is a non-profit that has been defending civil liberties & digital rights for over 30 years since it was first announced on July 10, 1990. My first conversation with the EFF was with Dave Maass at the VR Privacy Summit in November 2018 when consumer VR was still in a nascent phase and lower priority relative to civil liberty threats back then. But over the past year, the EFF has been starting to investigate the civil liberties and privacy implications of XR technologies, especially as VR has been gaining more commercial momentum. The EFF published an article on “If Privacy Dies in VR, It Dies in Real Life” on August 25, 2020 a week after Facebook announced that Facebook accounts would be required to use the Oculus VR headsets. After Facebook’s Project Aria AR prototype was announced at Facebook Connect, the EFF published “Augmented Reality Must Have Augmented Privacy” a month later on October 16, 2020. Their latest article was published on June 2, 2021 about “Your Avatar is You, However You See Yourself, and You Should Control Your Experience.”

The EFF helped to organize a RightsCon session on June 10, 2021 titled “As AR/VR becomes a reality, it needs a human rights framework.” Avi Bar-Zeev and I helped to contextualize some of the issues with VR to the Human Rights Lawyers and Activists attending RightsCon, and then were four different breakout groups for half the session brainstorming different human rights, digital rights, and civil liberties across different contexts including Law Enforcement Access to Potential Evidence & Surveillance, Biometric Inferences and Mental Privacy, Avatars and Virtual Agents, and Content Moderation.

I wanted to gather representatives from the EFF the day after the RightsCon session to debrief on insights what a human rights framework might look like for XR from the perspective of law, tech policy, tech architecture, and grassroots organizing.

  • Kurt Opsahl – Deputy Executive Director & Counsel for Electronic Frontier Foundation
  • Katitza Rodriguez – Policy director for global privacy for EFF
  • Jon Callas – Director of Technology Projects
  • Rory Mir – Grassroots organizer

We talk about human rights insights into XR technologies along with the provocation of what it might look like to have more civil liberty rights within XR. We talk about the first UN General Assembly Resolution on the “The right to privacy in the digital age,” and how the global policy perspectives provides new insights for how International data protection regulations, treaties, as well as resolutions passed by the UN’s General Assembly, the UN Council of Human Rights, and actions taken by the UN Special Rapporteur on the Right to Privacy. We also cover some of the US domestic privacy laws concerning the Fourth Amendment, the third-party doctrine, different philosophical approaches to privacy, the invisible nature of privacy harms, and whether it’s possible to build off of laws like the Video Privacy Protection Act since contains some of the strongest US protections for privacy. We talk about whether or not existing Notice & Consent models provide truly informed consent that’s freely given. We touch on a number of tech projects like Privacy Badger and the EFF’s first VR project Spot the Surveillance, what tech companies have your back in protecting your privacy, and how to get involved in your local EFF chapter at eff.org/fight.

How do we ensure that we have just as many if not more human rights in virtual reality? It’s going to take looking at existing human rights frameworks, and listening to the human rights advocates from around the world who are tracking the intersection of digital rights and human rights across different contexts. The EFF is helping to lead some vital discussions on the topic, and I was happy to be able to participate in their RightsCon session and do this debriefing the day after. Below is a rough timeline of UN Resolutions and Reports from the UN General Assembly and UN Council of Human Rights related to the Right to Privacy.

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Timeline of United Nations Resolutions Related to Privacy

10 December 1948: Universal Declaration of Human Rights, General Assembly resolution 217A [A/RES/217(III)]

Article 12
“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.”

16 December 1966: The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, UN General Assembly Resolution 2200A (XXI) [A/RES/2200(XXI)].

article 17 of the International Covenant on Civil and Political Rights
“No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.”

4 December 1986: UN General Assembly Resolution 41/128 [A/RES/41/128]: Declaration to the right to development

1 September 1988: Sub-Commission on Prevention of Discrimination and Protection of Minorities 1988/29 [E/CN.4/1989/3, E/CN.4/Sub.2/1988/45]: Guidelines on the Use of Computerized Personal Files

28 September 1988: 43/40 Supplement No. 40 [E/CN.4/1989/86]: Report of the Human Rights Committee

Right to privacy
69. With reference to that issue, members of the Committee requested details on protection against arbitrary and unlawful interference with privacy, family, home, and correspondence, particularly with regard to postal and telephone communications. It was also asked whether evidence obtained in violation of the right to privacy could be used in the courts and, if so, whether such instances had occurred and what the reaction of the court had been, whether authorities other than judges could order a house to be searched and under what circumstances and whether wire-tapping was authorized by law.

6 March 1989: Commission on Human Rights resolution 1989/43 [E/CN.4/1989/86]: Guidelines on the use of computerized personal files

24 May 1989: UN Economic & Social Council 1989/78 [E/RES/1989/78]: Guidelines on the use of computerized personal data files

15 December 1989: General Assembly Resolution 44/132 [A/RES/44/132]: Guidelines for the regulation of computerized personal data files

14 December 1990: General Assembly Resolution 45/95 [A/RES/45/95]: Guidelines for the regulation of computerized personal data files

13 October 1993: The Vienna Declaration and Programme of Action, UN General Assembly A/CONF.157/24(PartI): Vienna Declaration and Programme of Action via the UN World Conference on Human Rights Vienna, 14-25 June 1993

7 January 1994: UN General Assembly Resolution 48/141 [A/RES/48/141]: High Commissioner for the promotion and protection of all human rights

24 February 2006: UN General Assembly Draft Resolution 60/L.48 [A/60/L.48] Draft resolution submitted by the President of the General Assembly, Human Rights Council

“Assume the role and responsibilities of the Commission on Human Rights relating to the work of the Office of the United Nations High Commissioner for Human Rights, as decided by the General Assembly in its resolution 48/141 of 20 December 1993;”

15 March 2006: UN General Assembly Resolution 60/251 [A/RES/60/251]: Human Rights Council. The Human Rights Council assumes “the role and responsibilities of the Commission on Human Rights”

22 June 2006: UN Human Rights Council 1/1 [A/HRC/1/1]: Adoption of the Agenda and Organization of Work, Note by the Secretary-General

16 May 2007: UN Human Rights Council 5/1 [A/HRC/5/1]: Provisional Agenda, Note by the Secretary-General. “To consider in particular the institution-building process” for Human Rights.

27 April 2007: UN Human Rights Council 5/2 [ A/HRC/5/2]: Implementation of General Assembly Resolution 60/251 of 15 March 2006 entitled “Human Rights Council”

28 March 2008: UN Human Rights Council Resolution 7/36 [7/36]: Mandate of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression

30 April 2009: UN Human Rights Council 11/4 [A/HRC/11/4]: Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue

2 October 2009: UN Human Rights Council Resolution 12/16 [A/HRC/RES/12/16]: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development: Freedom of opinion and expression

8 April 2011: UN Human Rights Council Resolution 16/4 [A/HRC/RES/16/4]: Freedom of opinion and expression: mandate of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression

16 May 2011: UN Human Rights Council 17/27 [A/HRC/17/27]: Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue

12 September 2011: International Covenant on Civil and Political Rights CCPR/C/GC/34 [CCPR/C/GC/34]: General comment No. 34, Article 19: Freedoms of opinion and expression, General remark

17 April 2013: UN Human Rights Council 23/40 [A/HRC/23/40]: Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue

“The present report, submitted in accordance with Human Rights Council resolution 16/4 [of 8 April 2011], analyses the implications of States’ surveillance of communications on the exercise of the human rights to privacy and to freedom of opinion and expression. While considering the impact of significant technological advances in communications, the report underlines the urgent need to further study new modaliti.es of surveillance and to revise national laws regulating these practices in line with human rights standards.”

21 March 2011: UN Human Rights Council 17/31 [A/HRC/17/31]: Report of the Special Representative of the Secretary General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie

HRC/17/31 Annexes (p. 6-27): Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework.

10 August 2011: UN General Assembly 66/290 [A/66/290]: Promotion and protection of the right to freedom of opinion and expression

10 December 2013: UN General Assembly [A/68/456/Add.2]: Promotion and protection of human rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, Report of the Third Committee*

“At its 2nd plenary meeting, on 20 September 2013, the General Assembly, on the recommendation of the General Committee, decided to include in the agenda of its sixty-eighth session, under the item entitled “Promotion and protection of human rights”, the sub-item entitled “Human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms” and to allocate it to the Third Committee.”

26 November 2013: UN General Assembly [A/C.3/68/SR.23]: Third Committee, Summary record of the 23rd meeting, Held at Headquarters, New York, on Wednesday, 23 October 2013, at 10 a.m.

“Ms. Almeida Watanabe Patriota (Brazil) expressed concern that some countries had still not accepted the universal periodic review. In the case of country-specific human rights resolutions, negotiations should be more transparent. Her delegation commended the impartial work of the commission of inquiry on the Syrian Arab Republic. In view of the recent revelations of violations of the fundamental right to privacy, she asked what the international community could do to help to enforce that right and whether, in the High Commissioner’s opinion, the absence of Internet privacy guarantees might undermine freedom of expression. She would also appreciate further comments on what Member States could do to help others realize that securing basic human rights for all vulnerable groups, including lesbian, gay, bisexual and transgender people, did not represent an emphasis on any one group.”

1 November 2013: UN General Assembly [A/C.3/68/L.45]: Brazil and Germany: draft resolution, The right to privacy in the digital age [Would ultimately pass as A/RES/68/167 on 18 December 2013: The right to privacy in the digital age]

10 December 2013: UN General Assembly [A/68/456/Add.2]: Promotion and protection of human rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, Report of the Third Committee

“At the 43rd meeting, on 7 November, the representatives of Brazil and Germany made statements and on behalf of Austria, Bolivia (Plurinational State of), Brazil, the Democratic People’s Republic of Korea, Ecuador, France, Germany, Indonesia, Liechtenstein, Peru, Switzerland and Uruguay, jointly introduced a draft resolution, entitled “The right to privacy in the digital age” (), which read…”

10 December 2013: UN General Assembly 68/456/Add.2 [68/456/Add.2]: Promotion and protection of human rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, Report of the Third Committee**. Rapporteur: Ms. Adriana Murillo Ruin

18 December 2013: First General Assembly Resolution 68/167 [A/RES/68/167]: The right to privacy in the digital age

“Welcoming the report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression [A/HRC/23/40] submitted to the Human Rights Council at its twenty-third session, on the implications of State surveillance of communications on the exercise of the human rights to privacy and to freedom of opinion and expression,”

30 June 2014: UN Human Rights Council 27/37 [A/HRC/27/37]: The right to privacy in the digital age, Report of the Office of the United Nations High Commissioner for Human Rights

18 December 2014: UN General Assembly Resolutions 69/166 [A/RES/69/166]: The right to privacy in the digital age

26 March 2015: UN Human Rights Council Resolution 28/16 [A/HRC/RES/28/16]: The right to privacy in the digital age

“Decides to appoint, for a period of three years, a special rapporteur on the right to privacy, whose tasks will include… to submit an annual report to the Human Rights Council and to the General Assembly, starting at the thirty-first session and the seventy-first session respectively;”

22 May 2015: UN Human Rights Council 29/32 [A/HRC/29/32]: Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, David Kaye

21 October 2015: UN General Assembly Resolution 70/1 [A/RES/70/1] Transforming our world: the 2030 Agenda for Sustainable Development

16 December 2015: UN General Assembly Resolution 70/125 [A/RES/70/125] Outcome document of the high-level meeting of the General Assembly on the overall review of the implementation of the outcomes of the World Summit on the Information Society

16 December 2015: Press release for General Assembly of the United Nations, “WSIS+10 Outcome: Countries Adopt New Plan to Utilize Internet and Information Technologies in Implementation of New Sustainable Development Agenda

1 February 2016: UN General Assembly Resolution 70/125 [A/RES/70/125]. Outcome document of the high-level meeting of the General Assembly on the overall review of the implementation of the outcomes of the World Summit on the Information Society

1 July 2016: UN Human Rights Council 32/13 [A/HRC/RES/32/13]: The promotion, protection and enjoyment of human rights on the Internet

15 December 2016 (publication date) VIDEO: Professor Cannataci: UN Special Rapporteur on the Right to Privacy

Five Priorities of UN Special Rapporteur on the Right to Privacy: A better understanding of privacy, security & surveillance, Big Data & Open Data, Health Data, & Personal Data Held by Corportations

19 December 2016: UN General Assembly Resolutions 71/199 [A/RES/71/199]: The right to privacy in the digital age

23 March 2017: UN Human Rights Council Resolution 34/7 [A/HRC/RES/34/7]: The right to privacy in the digital age

17 to 28 June 2017: Visit to the United States of America Report of the Special Rapporteur on the right to privacy, Joseph A. Cannataci [See report A/HRC/46/37/Add.4 published on 20 January 2021]

6 September 2017: UN Human Rights Council 34/60 [A/HRC/34/60]: Report of the Special Rapporteur on the right to privacy

“In his report, prepared pursuant to Human Rights Council resolution 28/16, the Special Rapporteur on the right to privacy focuses on governmental surveillance activities from a national and international perspective. The Special Rapporteur elaborates on the characteristics of the international legal framework and the interpretation thereof. He also describes recent developments and trends, how these can be studied and how they interact with the enjoyment of the right to privacy and other interconnected human rights. Consequently, he outlines first approaches to a more privacy-friendly oversight of government surveillance. In conclusion, the Special Rapporteur reports on his activities in the period covered by his report.”

19 October 2017: UN General Assembly 72/540 [A/72/540]: Right to privacy, Note by the Secretary-General, Special Rapporteur of the Human Rights Council on the right to privacy, Joseph A. Cannataci, submitted in accordance with Human Rights Council resolution 28/16

6 April 2018: UN Human Rights Council Resolution 37/2 [A/HRC/RES/37/2] The right to privacy in the digital age

5 July 2018: UN Human Rights Council 38/7 [A/HRC/RES/38/7]: Promotion, protection and enjoyment of human rights on the Internet

13 July 2018: UN Human Rights Council 38/35/Add.5 [/A/HRC/38/35/Add.5]: Encryption and Anonymity follow-up report

3 August 2018: UN Human Rights Council 39/29 [A/HRC/39/29]: The right to privacy in the digital age: Report of the United Nations High Commissioner for Human Rights

“The present report is submitted pursuant to resolution 34/7, in which the Human Rights Council requested the High Commissioner for Human Rights to prepare a report identifying and clarifying principles, standards and best practices regarding the promotion and protection of the right to privacy in the digital age, including the responsibility of business enterprises in this regard, and present it to the Human Rights Council at its thirtyninth session.”

29 August 2018: UN General Assembly 73/348 [A/73/348]: Promotion and protection of the right to freedom of opinion and expression

17 October 2018: UN General Assembly 73/438 [A/73/438: Right to privacy*, Note by the Secretary-General

29 November 2018: UN General Assembly 73/589 [A/73/589]: Promotion and protection of human rights. Report of the Third Committee

1 December 2018: UN General Assembly 73/589/Add.1 [A/73/589/Add.1]: Promotion and protection of human rights: implementation of human rights instruments, Report of the Third Committee

3 December 2018: UN General Assembly 73/589/Add.4 [A/73/589/Add.4]: Promotion and protection of human rights: comprehensive implementation of and follow-up to the Vienna Declaration and Programme of Action, Report of the Third Committee

4 December 2018: UN General Assembly 73/589/Add.2 [A/73/589/Add.2]: Promotion and protection of human rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, Report of the Third Committee

6 December 2018: UN General Assembly 73/589/Add.3 [A/73/589/Add.3]: Promotion and protection of human rights: human rights situations and reports of special rapporteurs and representatives, Report of the Third Committee

17 December 2018: UN General Assembly Resolutions 73/179 [A/RES/73/179]: The right to privacy in the digital age

13 February 2019: Annex 4: Privacy Metrics – Consultation Draft, “Metrics for Privacy – A Starting Point“, Special Rapporteur on the right to privacy, Professor Joseph A. Cannataci.

11 July 2019: UN Human Rights Council 41/12 [A/HRC/RES/41/12]: The rights to freedom of peaceful assembly and of association

“Requests the Special Rapporteur to continue to report annually to the Human Rights Council and the General Assembly;”

5 August 2019: UN General Assembly 74/277 [A/74/277] Right to privacy, Note by the Secretary-General (Part II. Health-related data)

26 September 2019: UN Human Rights Council Resolution 42/15 [A/HRC/RES/42/15]: The right to privacy in the digital age

In Human Rights Council Resolution 42/15, “Paragraph 10 of the resolution requested the United Nations High Commissioner for Human Rights “to organize, before the forty-fourth session of the Human Rights Council, an expert seminar to discuss how artificial intelligence, including profiling, automated decision-making and machine-learning technologies may, without proper safeguards, affect the enjoyment of the right to privacy [and] to prepare a thematic report on the issue”.

16 October 2019: UN Human Rights Council 40/63 [A/HRC/40/63]: Right to privacy: Report of the Special Rapporteur on the right to privacy

24 March 2020: UN Human Rights Council 43/52 [A/HRC/43/52]: Report of the Special Rapporteur on the right to privacy

23 April 2020: UN Human Rights Council Resolution 44/49 [A/HRC/44/49]: Disease pandemics and the freedom of opinion and expression: Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression

13 May 2020: UN Human Rights Council Resolution 44/50 [A/HRC/44/50]: Ten years protecting civic space worldwide: Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association

27-28 May 2020, [Expert Seminar Report – Right to Privacy] Report of the proceedings of the online expert seminar with the purpose of identifying how artificial intelligence, including profiling, automated decision-making and machine learning technologies may, without proper safeguards, affect the enjoyment of the right to privacy

18 June 2020: UN Human Rights Council Resolution 44/57 [A/HRC/44/57]: Racial discrimination and emerging digital technologies: a human rights analysis, Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance

19 June 2020: UN Human Rights Council 43/4 [A/HRC/RES/43/4]: Freedom of opinion and expression: mandate of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression

24 June 2020: UN Human Rights Council 44/24 [A/HRC/44/24]: Impact of new technologies on the promotion and protection of human rights in the context of assemblies, including peaceful protests, Report of the United Nations High Commissioner for Human Rights

20 July 2020: UN General Assembly 75/184 [A/75/184]: Rights to freedom of peaceful assembly and of association

27 July 2020: UN General Assembly 75/147 [A/75/147]: Right to privacy, Note by the Secretary-General

28 July 2020: UN General Assembly 75/261 [A/75/261]: Promotion and protection of the right to freedom of opinion and expression, Note by the Secretary-General

28 August 2020: UN General Assembly Resolution 75/329 [A/75/329]: Contemporary forms of racism, racial discrimination, xenophobia and related intolerance, Note by the Secretariat

16 December 2020: UN General Assembly Resolutions 75/176 [A/RES/75/176]: The right to privacy in the digital age

20 January 2021: UN Human Rights Council A/HRC/46/37/Add.4 [A/HRC/46/37/Add.4]: Visit to the United States of America Report of the Special Rapporteur on the right to privacy, Joseph A. Cannataci

“The Special Rapporteur on the right to privacy, Joseph A. Cannataci, carried out an official visit to the United States of America between 17 and 28 June 2017. While praising several strengths of the United States system, the Special Rapporteur observed the risks resulting from fragmentation caused by organic growth and the misplaced confidence that certain conventions would be respected by the Executive. He recommends a gradual overhaul of privacy law, with a special focus on simplification, and an increase in both safeguards and remedies. He especially recommends that United States law should be reformed further to entrench the powers of existing and new oversight authorities while bringing safeguards and remedies for foreign intelligence up to the same standard as for domestic intelligence…

The present report was finalized in autumn 2020, after evaluating the preliminary results of the country visit in meetings held during the visit, which took place from 17 to 28 June 2017, and cross-checking them with follow-up research and developments to date. The benchmarks used in the present report include the privacy metrics document released by the Special Rapporteur.”

17 February 2021: UN Human Rights Council /A/HRC/46/37/Add.8 [A/HRC/46/37/Add.8]: Report of the Special Rapporteur on the right to privacy on his visit to United States of America, Comments by the State

U.S. comments on the framework of the Special Rapporteur’s analysis:
The United States notes that, throughout his report, the Special Rapporteur (UNSRP) assumes that “necessity and proportionality” and related European Union (EU) law data protection standards reflect current international law. In the view of the United States, this assumption is incorrect. Instead, the applicable international human rights law for evaluating U.S. privacy practices is the International Covenant on Civil and Political Rights (ICCPR). Article 17 of that instrument provides that “[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence.” This provision does not impose a requirement of proportionality or necessity on a State Party’s interference with privacy; instead, it imposes an obligation to refrain from arbitrary or unlawful interference with privacy. That is the obligation that the United States implements through its domestic legal framework. While certain elements of U.S. domestic law may use the words “necessary” or “proportionate” in relation to privacy, the relevant inquiry here is how the United States implements its obligations under Article 17 of the ICCPR.

23 March 2021: UN Human Rights Council Resolution 44/57 [A/HRC/RES/46/16]: Mandate of Special Rapporteur on the right to privacy

“Recognizing the increasing impact of new and emerging technologies, such as those developed in the fields of surveillance, artificial intelligence, automated decision-making and machine-learning, and of profiling, tracking and biometrics, including facial recognition, without proper safeguards, on the enjoyment of the right to privacy and other human rights,”

18 May 2021: UN Human Rights Council: 47/61 [A/HRC/47/61]: The right to privacy in the digital age, Note by the Secretariat

“In its resolution 42/15 on the right to privacy in the digital age, the Human Rights Council requested the United Nations High Commissioner for Human Rights to prepare a thematic report on how artificial intelligence, including profiling, automated decisionmaking and machine-learning technologies may, without proper safeguards, affect the enjoyment of the right to privacy, and to submit it to the Council at its forty-fifth session. ”

UN Digital Library Search “Right to Privacy in the Digital Age

UN Digital Library Search “Right to Privacy

Timeline of ICT and Internet governance developments [Really detailed timeline and history]

List of UN Special Rapporteurs

Video: History of the UN Human Rights Council

28 January 1981: Details of Treaty No.108: Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data

31 December 2020: Guide on Article 8 of the European Convention on Human Rights: Right to respect for private and family life, home and correspondence

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