Escolar Documentos
Profissional Documentos
Cultura Documentos
TABLE OF CONTENTS
TABLE OF CONTENTS
INTRODUCTION
QARMAS
CONCLUSION
10
FURTHER RESEARCH
11
I.
INTRODUCTION
Haroon Siddique, Internet privacy as important as human rights, says UN's Navi Pillay, The
Gardian, 26th December 2013. Available at:
http://www.theguardian.com/world/2013/dec/26/un-navi-pillay-internet-privacy. Last access: 5th August
2015.
2 UN Human Rights Council, Report of the Office of the United Nations High Commissioner for
Human Rights on the right to privacy in the digital age, 30th June 2014, A/HRC/27/37, para. 1.
Available at:
http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session27/Documents/A.HRC.27.37_ en.pdf.
Last access: 5th August 2015.
II.
UN Human Rights Council, Report of the Office of the United Nations High Commissioner for
Human Rights on the right to freedom of opinion and expression, Frank La Rue, 17th April 2013, A/HRC/
23/40, para. 3. Available at: http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/
Session23/A.HRC.23.40
_EN.pdf. Last access: 5th August 2015. Last access: 5th 4 UN
Human Rights Council, supra note 2, para. 3.
In 2011, the UN Human Rights Councils Special Rapporteur on the promotion and
protection of the right to freedom of opinion and expression referred to the inadequate
protection of the right to privacy and data protection4 followed by the fact that there is
[a] number of States introducing laws or modifying existing laws to increase their power
to monitor Internet users activities and content of communication without providing
sufficient guarantees against abuse6 ultimately effecting their right to freely express
themselves without anonymity. In his report, he acknowledged that even thou some
exceptional circumstances, under which the right to privacy can be subject to limitations
or restrictions, do exist, they fall under the scope of administration of criminal justice,
prevention of crime or combating terrorism.7 Nevertheless, it is quite difficult for policymakers, who wish to create concrete laws, to tell the difference between special
circumstances ordering active surveillance and abuse of power.
Consequently, there is an extreme distrust for actual methods of privacy protection,
due to growing restrictions on governmental access to private activities of technological
nature and the illegal surveillance.8 This situation influences how citizens perceive of the
government along with their trust to it, especially when it comes to data protection and
interaction among states that do not share the same point of view on this issue.9 Even
though exceptions as far as national security and criminal justice exist, they are not
clearly defined creating legal loopholes due to the unclear interpretation of law.10 As a
result, one of the arising issues is for whom the law applies to based on the territory and
jurisdiction.11 Cross-border and extraterritorial surveillance may not fall within a States
jurisdiction, since it depends on the interpretation of the obligations arising by the
International Covenant on Civil and Political Rights (hereinafter: ICCPR).12 Additionally,
promotion and protection of the right to freedom of opinion and expression,
Frank La Rue, 16th May 2011, A/HRC/17/27. Available at: http://www2.ohchr.org/english/bodies/
hrcouncil/docs/17session/A.HRC.17.27_en.pdf. Last accessed: 5th August 2015.
the Human Rights Council (hereinafter: HRC) supports the extraterritorial application of
the ICCPR, as it clearly states that a State party must respect and ensure the rights laid
down in the Covenant to anyone within the power of effective control of that State Party,
even if not situated within the territory of the State Party.13
According to the United Nations (hereinafter: UN) and the civil society reports, the
two majors violations pointed to are mass surveillance and data collection.14
One of the most controversial issues in the right to privacy constitutes of the legitimacy
of monitoring and the limit of surveillance.15 Governmental agencies all over the world
are still pushing for the expansion of capabilities in surveillance via investigations, which
are are mass communications and/or targeted, despite the preventive agreements
concerning the interception of communication - both oral and digital - without judicial
approval.16 When facing serious threats, such as acts of terrorism, surveillance systems
have proofed to be effective. Nevertheless, this would be impossible without the consent
or even the help from major telecommunications carriers17, calling into question the
balance between the right to security and the right to privacy.
13. UN Human Rights Committee, General Comment No. 31 [80]: The Nature of the General
Legal Obligation Imposed on States Parties to the Covenant (CCPR/C/21/Rev.1/Add. 1326),
2004.
14. UN Human Rights Council, The Right to Privacy in the Digital Age: Report of the
Office of the United Nations High Commissioner for Human Rights (A/HRC/27/37), 30th
June 2013. Available at: http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/
Session27/Documents/A.HRC.27.37_ en.pdf. Last accessed: 6th August 2015; Deborah
Brown, Digital rights and the UN: recent and upcoming UN resolutions. 2014.
15. White & Case, International Data Protection and Privacy Law, 2009.
16. David Rosen, Four ways your privacy is being invaded. 11th September 2012. Available at:
http://www.salon.com/2012/09/11/four_ways_your_privacy_is_being_invaded/. Last
Accessed: 6th August 2015.
17. Ibid.
By this same reasoning, especially due to the rapidly evolving technological advances,
the right to deny access to personal data should be afforded.10 Personal data should
simply be considered as any piece of information or a set of information that can
personally identify an individual or single them out as an individual. In this regard,
information, such as the Internet Protocol (hereinafter: IP) address can be considered as
personal data.11
In order to combat this phenomenon, the European Union (hereinafter: EU) has
created a passed a set of directives in order to enforce the legal framework for the right to
privacy but also to clarify any ambiguities.12 Specifically, both he European Data Privacy
Law and the European Union Data Privacy Direction provide with the necessary legal
framework for data privacy laws to Member-states belonging in the same regional bloc.13
Although he Directive does not itself analyse the rights of European individuals and/or
companies, it serves as the framework for discussing data protection laws within the EU,
creating the system to ensure the protection of personal data and privacy.14 For example,
the footprints left by internet users can be used to trace online activity. One method to
help to ensure online privacy is anonymisation, in other words removing or obscuring
information from these electronic traces that would allow direct or indirect identification
of a person. Another action to protect personal data consists of the principle that a data
controller can only collect and use personal data for a specific purpose or purpose
limitation, which contributes to the limitation of the use of personal data. Moreover,
consent or permission to use personal data may protect users, since they must be properly
informed and offer their consent by their own free will.15
10
IV.
There are still many practical challenges remaining to be faced concerning the right
to privacy in the digital age. The main obstacle is the way to respect a States sovereignty
and its security measures within a legal framework successfully reaffirming fundamental
individual human rights. Indeed, States must explain clearly the cases that would qualify
for privacy breaches. Thus, governments should adopt both precise and clear legislation,
which will help to protect the right to privacy.16 Specifically,[l]egislation must stipulate
that State surveillance of communications must only occur under the most exceptional
circumstances and exclusively under the supervision of an independent judicial authority.
Safeguards must be articulated in law relation to the nature, scope and duration of the
possible measures, the grounds required for ordering them, the authorities competent to
authorize, carry out and supervise them, and the kind of remedy provided by national
law.30
Due to the continuous technological advances, States must review and update their
legislation in order to reassure that its not irrelevant or outdated. Moreover, in order to
increase public awareness and transparency, States should pay attention when
approaching third party organisations for assistance with data sharing and mass
surveillance. Last but not least, given the crucial role of the private sector, international
legal framework must incorporate language addressing the right to privacy, maintaining
high standards and taking into consideration the direct effects that the aforementioned
organisations have.31
V.
- To what extend should states review their procedures, practices and legislation on the
surveillance of communications, interception and collection of personal data - including
16
UN Human Rights Council, supra note 3; UN Human Rights Council, Report of the Working Group on
Available
at: http://daccess-dds-
ny.un.org/doc/UNDOC/GEN/G10/138/98/PDF/G1013898.pdf?OpenElement.
mass surveillance - in order to uphold the right to privacy by ensuring the full and
effective implementation of all relevant obligations under international human rights law?
- What could be the possible international human rights mechanisms in relation to
ensuring privacy and freedom of expression? Should States attempt the creation of a
legally binding instrument?
- Should surveillance confirm with principles of proportionality, legitimacy, and necessity
principles that are not contained in the ICCPR but are promoted by a coalition of
advocacy groups?
- Do States human rights obligations extend beyond their borders and jurisdiction?
- How should States establish or maintain existing independent, effective domestic
oversight capable of ensuring transparency, as appropriate, and accountability for
surveillance and/or interception of communications and the collection of personal data?
VI.
CONCLUSION
There is a general consensus among scholars that the legal framework related to the
right to privacy must change in order to meet the needs of the new digital age.32
International documents, including the Universal Declaration of Human Rights
(hereinafter: UDHR) and the ICCPR have underlined the importance of the maintenance
and preservation of human rights. Although current circumstances, such as technological
advancements, have questions the right to privacy, the Member-States of the HRC have
always been staunch defenders for supporting this right.33 Still, both domestic and
international law should adapt to new technology, in order to avoid their large-scale
violations.17 Particularly, the collection of personal data and information for security
purposes leading to surveillance may sometimes be illegal. Due to the lack of
transparency, it is necessary to adopt measures in order to maintain the trust of the
citizens towards to both the government and private sector. Security and privacy in the
digital age are balancing with difficulty. This is why they require the cooperation of the
private businesses, the government and, of course, the civil society. Legal decisions will
mostly determine that evolving balance allowing the policy-makers to implement really
effective safeguards.
http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session23/A.H
RC.23.40_EN.pdf
17
Ibid.; Human Rights Watch, Joint Letter from Civil Society Organizations to Foreign Ministers of
Freedom Online Coalition Member States, 2014.
Convention
at:
on
Cybercrime.
Available
http://conventions.coe.int/Treaty/EN/Treaties/Html/185.htm
-
https://www.reformgovernmentsurveillance.com/
-
Big Brother Watch and others v. UK, European Court of Human Rights.
Available at:
http://hudoc.echr.coe.int/eng?i=001-140713#{"itemid":["001-140713"]}
-
Centrum for Rttvisa v. Sweden, European Court of Human Rights. Available at:
http://centrumforrattvisa.se/wp-content/uploads/2012/09/Regeringens-svarFRA.pdf