Remarks of the U.N. Special Rapporteur on Mr. Snowden

From the introduction to the report of Mr. David Kaye, Special Rapporteur, on the promotion and the protection of the right to freedom of opinion and expression,  submitted to the United Nations General Assembly in accordance with Human Rights Council resolution 25/2.

  1. On matters of public concern, how does information that is unjustifiably hidden become known? In some situations, formal oversight mechanisms and access to information laws compel disclosure. Even where they do exist, however, they are not always effective. Other approaches may be needed, for as a general rule, secrets do not out themselves. Rather, disclosure typically requires three basic elements: a person with knowledge who is willing and able to shed light on what is hidden; a communicator or a communication platform to disseminate that information; and a legal system and political culture that effectively protect both. Without that combination — source, dissemination and protection — what is secret all too often remains hidden, and the more that remains hidden, the less authorities are held accountable and individuals are able to make informed decisions about matters that may most affect them and their communities.
  2. Those are the principal rationales for legal and political frameworks that promote and guarantee access to information and protect the individuals and organizations that often make such access possible. Notwithstanding formal progress, Governments, international organizations and private entities often target persons disclosing secret information, in particular when they bring to light uncomfortable truths or allegations. Those who wish to call attention to malfeasance may find internal channels blocked, oversight bodies ineffective and legal protection unavailable. The absence of recourse often forces whistle-blowers to become sources for public disclosure, which may make them vulnerable to attack. International, regional and national trends toward greater formal protection do not necessarily translate into effective protection for sources and whistle-blowers. Ineffective protection results from gaps in law; a preference for secrecy over public participation; technology that makes it easy for institutions to breach privacy and anonymity; overly broad application of otherwise legitimate restrictions; and suspicion or hostility towards sources, whistle-blowers and the reporters who make such information known.
  3. The disclosure of secret information runs across a broad spectrum, with some instances, such as Edward Snowden’s revelations of surveillance practices, making a deep and lasting impact on law, policy and politics, while others struggle for attention and response. While the present report may be read in the light of all such cases, the Special Rapporteur does not analyse herein specific situations, but aims instead to highlight the main elements that should be part of any framework protecting sources and whistle-blowers consistent with the right to freedom of expression. He begins by reviewing everyone’s right to receive information of all kinds, especially information held by public bodies. He then highlights the principal elements of the international legal frameworks for source and whistle-blower protection, while also drawing on the practice of States, international and regional mechanisms and non-governmental initiatives. The report concludes with a set of recommendations.
  4. As part of the preparations for the present report, a questionnaire was sent to States seeking input on national laws and practices, to which 28 States responded.[1] Civil society organizations and individuals also contributed with critically important submissions. State responses and submissions, along with recommendations for further research into best practices, which could not be cited in the report, are available on the web page of the Special Rapporteur.[2] On 11 June 2015, a meeting convened in Vienna drew upon civil society and academic expertise in source and whistle-blower protection.[3] The Special Rapporteur thanks all who made contributions to the preparation of the present report.

          [1] By August 2015, the following States had responded: Angola, Argentina, Bosnia and Herzegovina, Bulgaria, Burkina Faso, Colombia, Cuba, Estonia, Finland, Georgia, Germany, Ghana, Guatemala, Ireland, Kazakhstan, Morocco, Mauritania, Netherlands, Norway, Oman, Republic of Korea, Saudi Arabia, Slovakia, Switzerland, Suriname, Trinidad and Tobago, Turkey and United States of America.

          [2]  See www.ohchr.org/EN/Issues/FreedomOpinion/Pages/ProtectionOfSources.aspx.

          [3] The meeting was jointly organized by the International Press Institute and the Government of Austria, with the generous support of the latter.

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