The Prosecutor v. Yekatom (ICC)

Whether there is an international human right to privacy in cell site location information

Summary

Over the last decade, a growing number of courts have recognized that the right to privacy includes the right to privacy in call metadata, including cell site location information. In The Prosecutor v. Yekatom, the International Criminal Court (ICC) will decide whether a defendant can exclude call location data obtained in a criminal investigation without prior judicial authorization. EPIC requested permission from the ICC to file an amicus brief arguing that the court should recognize an individual's right to privacy in their call location data and require that investigators' access to the data be limited through safeguards, such as prior judicial authorization.

Background

Procedural History

This case involves the prosecution of Alfred Yekatom for crimes allegedly committed during the ongoing civil war in the Central African Republic (CAR). During its investigation, the ICC Prosecutor sent CAR authorities a Request for Assistance (RFA) seeking all existing records for the call data of several individuals. These records included the cell site location information (CSLI) of the phones, including several belonging to Yekatom. The CAR Prosecutor forwarded the RFAs to the telecommunication companies, which then provided the requested records to the ICC Prosecutor.

Because the CAR does not require prior judicial authorization to access CSLI or other call metadata, the ICC Prosecutor was able to obtain Yekatom's CDRs without first receiving authorization from a judge. These records contained two years of CSLI tracing the geography of Yekatom's calls and, by proxy, his movements. The Prosecutor sent at least twenty additional RFAs and received thousands of CSLI records, which it used in preliminary hearings to prove where Yekatom was at certain times in the past. The Prosecution also intends to rely on this evidence at trial.

Once the case was assigned to a trial court within the ICC system, Yekatom moved to exclude the call location evidence. Yekatom argued that the data was protected by an internationally recognized human right to privacy; the Prosecutor violated this right by obtaining the records without a judge's permission. The motion argued that the Prosecutor should not be able to use this information as evidence against Yekatom at trial.

Legal Background

The ICC's governing Statute allows courts to exclude evidence obtained through a violation of an "internationally recognized human right," as long as the violation undermines the reliability of that evidence or damages the integrity of the trial. So, first, the court must determine whether the evidence was obtained in a way that violated human rights. Then, if it was, the court must determine whether the evidence is unreliable or otherwise damages the integrity of the trial.

In past cases, the ICC has found that there is an internationally recognized human right to privacy. This right is based in numerous international treaties, including the Universal Declaration of Human Rights, the International Covenant of Civil and Political Rights, and the European Convention of Human Rights and Fundamental Freedoms.

Other courts have interpreted the human right to privacy broadly, finding that it protects electronic information. The European Court of Human Rights (ECHR) and the Court of Justice of the European Union (CJEU) have decided numerous cases recognizing that the right to privacy protects phone metadata. Some of these cases involved challenges to mass surveillance programs requiring telecommunications companies to retain call records on millions of individuals; these records necessarily contain historical CSLI, meaning CSLI recorded from past calls. Some cases involved investigations where officials obtained historical and real-time call location information on particular defendants. One case before the Special Tribunal for Lebanon involved an investigation that obtained call location information on the residents of the entire country. In each of these different contexts, various courts agreed that the right of privacy is threatened by the collection, retention, aggregation, and use of these types of data.

EPIC's Interest

EPIC has done extensive work to establish a right to privacy in CSLI in the United States and to develop the international right to privacy in the digital age. In Carpenter v. United States, EPIC filed an amicus brief arguing that prior judicial authorization is required to obtain historical CSLI from telephone service providers in criminal investigations. The U.S. Supreme Court agreed, adopting a warrant requirement in that case. EPIC intervened in the case of 10 Human rights organizations and others v. the UK (Big Brother Watch v. UK) before the European Court of Human Rights, which concerned whether alleged surveillance activities by government agencies violated the right to privacy under the European Convention on Human Rights. EPIC has further participated in successful challenges to surveillance regimes under the E.U. Charter of Fundamental Rights before the Irish High Court and in the Court of Justice of the European Union, most recently in Data Protection Commissioner v. Facebook Ireland Limited and Max Schrems.

EPIC's Application to the ICC

EPIC filed a Request for Leave to File an Amicus Brief with the trial chamber deciding the Yekatom case. If the court grants EPIC's request, EPIC plans to file an amicus brief arguing two points:

  1. The right to privacy already recognized by the ICC includes a specific right to privacy in one's call data records (CDR), a right that is increasingly recognized by other international courts; and
  2. An individual's historical CSLI is protected under this right.

In its brief, EPIC will highlight recent decisions from various international courts recognizing that the human right to privacy extends to call location data. EPIC will also argue that the right to privacy is an individual right which protects location data whether it is obtained through mass surveillance or during an individualized investigation. Similarly, this right protects an individual's privacy in their historical CSLI. The reasoning applied to real-time location data privacy applies with even greater force to the aggregation of historical location data, which allows investigators to discern revealing patterns of a person's behavior including their relationships, political and religious affiliations, and other private activities. As the Special Tribunal for Lebanon announced, "It is evident that international human rights standards are evolving to include legal protection of metadata such as call data records from unwarranted disclosure." EPIC will argue that protection of this type of data is widely recognized as part of the right to privacy, and the ICC should also require protections for this type of evidence.

Legal Documents

The Prosecutor v. Alfred Yekatom & Patrice-Edouard Ngaïssona, No. ICC-01/14-01/18-591

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