The Right to Privacy under Fire – Foreign Surveillance under the NSA and the GCHQ and Its Compatibility with Art. 17 ICCPR and Art. 8 ECHR

Abstract

The recent exposure of the NSA documents has raised a great deal of concerns with regards to the effective control of companies that cooperate with intelligence agencies. It also exposed a network of secret government spying partnerships used to go around existing domestic guarantees and to spy on one's own citizens through the back door. The dread that both legal and technological means designed with legitimate purposes such as counter-terrorism and crime prevention are also employed for total social control is now out there. In many aspects it looks like we are experiencing the end of privacy and opting for a 'surveillance society' instead. In the clutter of pressing issues, most of the recent scholarly attention has focused on the assessment and reform proposals of the existing, but as it turns out inadequate with respect to actual rights protection, domestic legal frameworks. This has left the obligations of the intruders under international human rights law unconsidered. Therefore, the present paper aims at evaluating the legality of such surveillance programs under the International Covenant on Civil and Political Rights and the European Convention on Human Rights.

The Orwellian Reality of Counter-Terrorism Measures Under The ECHR

“…Any data retention not in line with the aim of combating terrorism must be held unlawful, as a huge triumph for terrorists is for traditional freedoms to be undermined. 111 States use counter-terrorism measures such as mass surveillance to prevent terrorist recruitment, which triggers a conflict between safety and the fundamental value of privacy. The assessment made by the ECtHR is strongly influenced through the Member State declaring a state of emergency as, in the event of a state of emergency, additional leeway in the form of a margin of appreciation is granted to the State.…”

The Waikato Data Privacy Matrix

“…In recent years, legislation has been enacted to protect the privacy of an individual or society, but this has come under fire. [15] This has been fuelled by the large amount of media coverage and publicity about leaks of personal data, and breaches of data privacy, including the case of the 2013 National Security Agency (NSA) leaks [16]. See the Related Background Appendix at A.2 for more information about the NSA leaks and PRISM.…”

The role of international human rights law in the protection of online privacy in the age of surveillance

“…First, it corresponds to the notion of control developed and required by human rights courts and bodies, 93 outlined above. Secondly, it responds to the jurisdictional challenges of human rights obligations in surveillance cases, because the intelligence agencies under scrutiny are perfectly capable of controlling lives and private information with the press of the button.…”