Context: the criminalisation of opposition and popular resistance
To crack down on opposition, some authorities deploy an arsenal of techniques to criminalise activists and human rights defenders. Grassroots struggles – particularly those of Indigenous peoples for water and land rights – are branded as terrorist; acts of resistance are conflated with "disloyalty;" activists are accused of fabricated offences in unfair trials. These methods attempt to justify the arrest, imprisonment, and sometimes the slaying of associative activists, political opponents, journalists, and human rights defenders.
→ See an infographic on criminalisation of human rights defenders
Over the past 20 years, such human rights violations have been carried out by certain governments – both authoritarian and democratic – in the name of fighting terrorism. Emergency legislation has been used to repress all kinds of social protest. In a context of unbridled, globalised capitalism, with a rapidly expanding cybersecurity market, the consequences of these laws transcend individual cases and have vast implications for human rights.
"Emergency legislation gives significant surveillance powers to intelligence agencies. Companies around the world develop, sell, and export surveillance systems, that can be used by regimes or private actors to facilitate the repression of any critical voice, with impunity."
Illegal surveillance: Pegasus spyware involved in growing number of cases
Among these companies, one name regularly comes up in cases of illegal surveillance: Pegasus, from the Israeli company NSO Group Technologies.
In 2016, Citizen Lab identified one of the first uses of this spyware in the United Arab Emirates. In 2017, it was found in Mexico, where it was purchased for the equivalent of 77,000 euros – with taxpayer money. In June 2020, the illegal surveillance of a Moroccan journalist by Pegasus was reported, and in early 2021, that of a Togolese journalist. While Hungary hacks the devices of political opponents and journalists, Israel uses Pegasus to illegally spy on Palestinian human rights defenders.
As cases mounted and seemingly no country was spared, 80 journalists embarked on a major investigation culminating in 2021 and covering 10 countries, called “The Pegasus Project”, spearheaded by Forbidden Stories and Amnesty International. Their work revealed “massive leaks” from 50,000 phone numbers targeted by the spyware worldwide. The list sent shockwaves through the international community; it included the names of journalists and human rights defenders who had been imprisoned or murdered.
Legal action and international sanctions: fighting illegal surveillance
Combating illegal surveillance, used to quash opposition, is an imperative part of defending human rights.
This can take the form of legal action against violations of human rights defenders’ rights. This is the case, for example, of French-Palestinian lawyer Salah Hamouri, who on 5 April 2022 filed a joint complaint with FIDH and the Ligue des droits de l’Homme (LDH) against NSO Group Technologies for illegally infiltrating his phone. Sanctions can also be taken against companies: in December 2021, several organisations asked the European Union to impose sanctions on NSO.
State responsibility is also at play. Faced with the “staggering scale of surveillance targeted at human rights defenders” by Pegasus, several organisations, including FIDH, have urged “all states to enforce a moratorium until a clear human rights regulatory framework is established.” The call for a moratorium on the sale, transfer, and use of surveillance tools was first made by the UN Special Rapporteur on Freedom of Opinion and Expression David Kaye in 2019 – he called for surveillance technology to be “banned immediately until effective national or international controls are put in place to lessen its harmful impact.”
Human rights groups are also raising awareness among international organisations of the dangers of illegal surveillance. This was the case at the Inter-American Commission on Human Rights (IACHR) on the occasion of a hearing on cyber-surveillance in El Salvador in March 2022, in which Pegasus was again implicated.
Promoting an international regulatory framework against illegal surveillance
While some states justify illegal surveillance by the fight against terrorism, impunity remains. The regulatory framework governing the use of surveillance technologies and the legal means to protect victims must be strengthened.
At the international level, there is an urgent need to adopt a “legal framework that requires transparency on the use and acquisition of surveillance technologies.”
"FIDH calls for the repeal of legislation and the cessation of repressive practices adopted or reinforced in the name of the fight against terrorism, and for greater control over the sale, export and use of surveillance systems."
In February 2022, the European Commission adopted a proposal for a directive on sustainable corporate due diligence. As the negotiation phase opens in the European Parliament, the text should take into account the situation of human rights defenders “who are regularly subjected to reprisals for speaking up in the context of economic projects.”
Faced with such powerfully dangerous spyware, everyone’s right to privacy is at stake. What’s more, our freedoms of association, assembly, and expression are under assault by illegal surveillance.
And it is those who speak truth to power, rock the boat, challenge the powers that be, stand up for our rights – it is they whose personal data, health, safety, and personal lives are most violated and jeopardised. These brave individuals are prime targets of this potent, weaponised technology. This digital threat can and must be countered. One lawsuit, one piece of legislation, one sanction, one moratorium, one investigation at a time.