Digital Surveillance, Meta Data and Foreign Intelligence Cooperation: Unpacking the International Right to Privacy
13 Pages Posted: 18 May 2018 Last revised: 28 May 2019
Date Written: April 25, 2018
Anti-terrorism measures have led to increasing digital interception of private communications and to mass surveillance, the extent of which had been unseen until recently. When a few years ago the discussion started about how to deal with this phenomenon, the call for a new legal instrument quickly erupted. However, this the article demonstrates that this is not a blind spot of international law. Article 17 of the International Covenant on Civil and Political Rights guarantees the right to privacy and the protection against unlawful interference with correspondence. The Human Rights Committee which is entrusted with the interpretation of the Covenant has taken recent cyber-related developments as an opportunity to unpack the right to privacy in the context of its state reporting procedure. The article by Anja Seibert-Fohr describes and systematizes the Human Rights Committee’s interpretation of Article 17 of the International Covenant on Civil and Political Rights with respect to the protection of privacy against digital surveillance, meta data retention and foreign intelligence cooperation and outlines the respective legal standards. The author demonstrates that the Covenant provides the necessary legal ground to confront new technological challenges without ignoring the exigencies of the altering security situation. Safeguard procedures play a central role in this undertaking. The Committee, having identified various shortcomings in national legal frameworks, has specified the necessary safeguards to effectively protect the right to privacy against arbitrary interference. It has also clarified the territorial scope of protection under the Covenant which is not limited to domestic measures but also extents to transnational surveillance and digital intelligence sharing. The Committee thus has specified the meaning of Article 17 and laid important groundwork for the consideration of cyber-related issues. The author concludes with an outlook, describing new issues which the Committee will need to consider in the future, and makes general recommendations for the future conceptualization of the right to privacy in the digital age more generally.
Keywords: Cyber Rights, Meta Data, Surveillance, Intelligence
JEL Classification: K33
Suggested Citation: Suggested Citation