Human Rights Extraterritoriality: The Right to Privacy and National Security Surveillance

Abstract

This chapter focuses on the international right to privacy and national security surveillance by spy agencies. It assesses the extent to which the law of the United States and Europe (EU and ECtHR) afford extraterritorial protection for the right to privacy, in furtherance of the international human right to privacy. The chapter concludes that U.S. law draws a stark line between insiders (U.S. citizens and permanent residents) and outsiders, and affords significantly more protection for insiders. On the European side, even though the EU does not have jurisdiction internally over spy agencies, it does have the power to regulate foreign access to EU personal data. The four EU-U.S. agreements in place that govern the U.S. intelligence community’s use of EU personal data follow the logic of bilateralism, and protect only personal data originating in the EU and, in some cases, only EU persons. As for the ECtHR, which has jurisdiction internally over European spy agencies, its jurisprudence on extraterritoriality strongly suggests that, once squarely confronted with the issue, the ECtHR will find that European spy agencies have a duty to respect privacy rights whenever they exercise control over personal data.

Keywords: international law, privacy law, national security law, comparative law, European law