Regulating International Trade in Commercial Spyware
Siena Anstis, Ronald J. Deibert, and John Scott-Railton of Citizen Lab published an editorial calling for regulating the international trade in commercial surveillance systems until we can figure out how to curb human rights abuses.
Any regime of rigorous human rights safeguards that would make a meaningful change to this marketplace would require many elements, for instance, compliance with the U.N. Guiding Principles on Business and Human Rights. Corporate tokenism in this space is unacceptable; companies will have to affirmatively choose human rights concerns over growing profits and hiding behind the veneer of national security. Considering the lies that have emerged from within the surveillance industry, self-reported compliance is insufficient; compliance will have to be independently audited and verified and accept robust measures of outside scrutiny.
The purchase of surveillance technology by law enforcement in any state must be transparent and subject to public debate. Further, its use must comply with frameworks setting out the lawful scope of interference with fundamental rights under international human rights law and applicable national laws, such as the “Necessary and Proportionate” principles on the application of human rights to surveillance. Spyware companies like NSO Group have relied on rubber stamp approvals by government agencies whose permission is required to export their technologies abroad. To prevent abuse, export control systems must instead prioritize a reform agenda that focuses on minimizing the negative human rights impacts of surveillance technology and that ensures — with clear and immediate consequences for those who fail — that companies operate in an accountable and transparent environment.
Finally, and critically, states must fulfill their duty to protect individuals against third-party interference with their fundamental rights. With the growth of digital authoritarianism and the alarming consequences that it may hold for the protection of civil liberties around the world, rights-respecting countries need to establish legal regimes that hold companies and states accountable for the deployment of surveillance technology within their borders. Law enforcement and other organizations that seek to protect refugees or other vulnerable persons coming from abroad will also need to take digital threats seriously.