Surveillance oversight requires international effort

By Erika Schneidereit May 3, 20173 May 2017

Surveillance oversight requires international effort

 

Since reports on Edward Snowden’s leaks on U.S. spying were published four years ago, the question of where (and how) to draw the line between privacy rights and security interests has generated considerable interest both domestically and at the international level. And yet, international law is still grappling with how to effectively regulate governmental surveillance and access to personal data.

Any discussion on the topic must begin by considering the right to privacy in international law, enshrined as a fundamental human right both in Article 12 of the United Nations Declaration of Human Rights and in Article 17 of the International Covenant on Civil and Political Rights (as well as a handful of other international and regional agreements). But the right to privacy is also a qualified protection. Article 12 refers to no person being subjected to “arbitrary interference” with privacy and Article 17 prohibits “arbitrary or unlawful interference’ with privacy.

What does this mean exactly? Essentially, while states can legally interfere with a person’s right to privacy, they must do so in a way that complies with the principles of necessity, legitimacy, and proportionality. Unsurprisingly, making that determination is no simple task. For example, a December 2016 European Court of Justice judgment limiting domestic data retention powers was sharply criticized by security advocates criticized for failing to rely on actual evidence in determining the balance between interference with privacy rights and the utility of domestic data retention for domestic security operations. Of course, privacy advocates praised the decision and its deference to privacy rights.

While the right to privacy is undoubtedly enshrined in international law, it is less clear how far it extends and whether the same protections apply to the right to data protection from governmental surveillance — something national governments and international organizations are trying to work through. In February 2017, the UN Special Rapporteur on the right to privacy, Joseph A. Cannataci, presented a report to the Human Rights Council focusing on governmental surveillance and potential ways to establish “more privacy-friendly oversight” of it.

The Special Rapporteur’s report bases its recommendations on the assumption that privacy is a universal right, founded on the concept of human dignity. It states, “Any national laws or international agreements disregarding this fact, must be considered outdated and incompatible with the universal nature of privacy and fundamental rights in the digital age.”

Even so, the Special Rapporteur recognizes that in its current form, international law lacks both safeguards and remedies to regulate surveillance and protect privacy in the digital age. The Cybercrime Convention, for example, only deals with criminal justice and not with issues pertaining to national security or surveillance for national security purposes.

Instead, the Special Rapporteur focuses his recommendations on calling for a multilateral agreement regulating governmental surveillance and ensuring the protection of privacy in cyberspace. While such an agreement would certainly present challenges, the increasing use of surveillance activities in combating security threats, as well as the transnational character of issues related to cyberspace, demonstrate that protecting personal data from governmental surveillance must be done through international efforts rather than domestic initiatives alone.

Erika Schneidereit is a JD candidate at the University of Ottawa - Faculty of Law and an MA candidate at the Norman Paterson School of International Affairs. The author's views are her own.

Photo licensed under Creative Commons by spideroncoffein

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