Editors’ Picks: International Human Right Law on Privacy (and Surveillance)

Annotations by Haley Anderson, a student at New York University School of Law with assistance from Just Security’s senior editorial team 

Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary 377–405 (2d rev. ed. 2005).

Discussing Article 17 of the ICCPR, Nowak sets forth a broad notion of privacy, which he writes is founded on a “liberal concept of freedom.” He provides a brief explanation of the concepts of “unlawful” and “arbitrary” interference that the treaty drafters selected instead of designating instances in which interference would be appropriate. He notes that unlawfulness is judged in relation to national legal systems. Regarding arbitrariness, he notes that the notion includes “an element of ‘capriciousness” and must be judged against a backstop of reasonableness and compatibility with the ICCPR’s purposes, aims, and objectives. Considering the article’s scope, he provides a moderately broad description of correspondence—“all forms of communication over distance, i.e., by telephone, telegram, telex, telefax, e-mail and other mechanical or electronic means of communication”—and a broad description of interference—“[e]very withholding, censorship, inspection of (or listening to) or publication of private correspondence represents interference within the meaning of Art. 17.” Finally, Nowak provides three instances in which states had unlawfully or arbitrarily interfered with the right to privacy and two in which they had not, which demonstrate the fact-intensive inquiry involved in such determinations.

Fernando Volio, Legal Personality, Privacy, and the Family, in The International Bill of Rights: The Covenant on Civil and Political Rights 185, 189–200 (Louis Henkin ed., 1981).

Volio provides a general account of what the right to privacy underlying Article 17 of the ICCPR means and argues for a broad interpretation. He provides four versions of what the content of that right may be and also discusses the various zones of protection—the family, the home, correspondence, and honor and reputation. With respect to the home and correspondence in particular, he contends that protection against interference in the home should be understood to include “not only uninvited entry, but also other intrusions, such as peeping or eavesdropping, electronic surveillance, overhearing, or noise that troubles the tranquility inside.” Similarly, he defines correspondence to include not only the traditionally understood “direct, personal communication between two individuals,” but also all “materials and documents that are not commonly called communications” when they are sent by any means of transportation or communication.

Paul de Hert & Vagelis Papakonstantinou, Three Scenarios for International Governance of Data Privacy: Towards an International Data Privacy Organization, Preferably a UN Agency?, 9 I/S: J. L. & Pol’y 271 (2013).

De Hert and Papakonstantinou provide a detailed account of the various regional and international data privacy initiatives—including the UN, OECD, Council of Europe, APEC, and EU—as well as domestic data privacy laws. This illustrates the complex, layered system of international data privacy norms that is not necessarily present in other works. [See also Nicola Carah Menaldo, “Viva la Data Protection? Chile as a Touchstone for the Future of Information Privacy,” 18 U. Miami Int’l & Comp. L. Rev. (2010-2011)]

Report of Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Human Rights Council, U.N. Doc. A/HRC/23/40 (Apr. 17, 2013) (by Frank La Rue).

In this report, La Rue lays out the international human rights law basis for the right to privacy, emphasizing its connection to the right to freedom of expression. The report applies these standards to national legislation regarding surveillance and demonstrates the gaps left in the wake of legislation’s failure to keep up with technology. Ultimately this report offers recommendations for how to bring communications surveillance in line with international human rights law.

Martin Scheinin, Former U.N. Special Rapporteur on Human Rights and Counter-Terrorism, Statement at LIBE Committee Inquiry on Electronic Mass Surveillance of EU Citizens, European Parliament (Oct. 14, 2013).

Scheinin argues that both the United Kingdom and United States “have been involved, and continue to be involved, in activities that are in violation of their legally binding obligations under the [ICCPR].” He asserts that U.S. surveillance lacks adequate legal basis, intrudes into the “inviolable core of privacy,” is not necessary in a democratic society, leaves room for unfettered discretion, and is disproportionate with respect to its benefits, and is open to abuse.

Privacy Int’l et al., “The right to privacy in the digital age,” OHCHR consultation in connection with General Assembly Resolution 68/167 (2014).

This submission strongly asserts that “measures are being taken to violate the right to privacy with increasing frequency” and that “[t]he national legal frameworks of many States fail to comply with international law and are inadequate to address these new forms of human rights violations.” To demonstrate this, the submission relies on General Comment No. 16 of the UN Human Rights Committee and ECtHR case law. It argues that mass foreign surveillance is per se disproportionate and therefore a violation of these instruments. The submission concludes with suggestions for how to improve commitment to human rights in the collection of data, including requiring that the weight of one’s right to privacy not be subject to discriminatory distinctions, studying state practices, and establishing a “dedicated special procedures mandate to the right to privacy in the digital age.”

CJEU Judgment in Digital Rights Ireland and Seitlinger and Others, Joined Cases C-293/12 and C-594/12 (2014).

The CJEU declared the European Union’s Data Retention Directive to be invalid because the data to be retained under it would make it possible (1) to know the identity of the persons with whom a subscriber or registered user has communicated, (2) to identify the time and place of the communication and (3) to know the frequency of communications during a given period. Collection of this sort of information interferes with the fundamental right to respect for private life, protected under Article 8 of the ECHR. For more coverage of the decision, see the post by Just Security’s Shaheed Fatima.    

Asher Hirsh, Does Government Spying Violate Human Rights Law?,  Right Now (Mar. 11, 2014).

Hirsh lays out the international human rights law provisions relevant to the right to privacy—Article 12 of the Universal Declaration of Human Rights and Article 17 of the ICCPR—and provides a brief discussion of the two qualifying prohibitions on surveillance: unlawfulness and arbitrariness. He notes that according to the UN Human Rights Committee, the prohibition on unlawful interferences reaches cases not “envisaged by the law” and the prohibition on arbitrary interferences requires that interferences be necessary and reasonable. The combination of these two requirements means that more cases may violate IHRL, since even lawful surveillance may be arbitrary and non-arbitrary surveillance may be unlawful.

Human Rights Watch & Electronic Frontier Foundation, Supplemental Submission to the Human Rights Commission During its Consideration of the Fourth Periodic Report of the United States (2014).

Section I in particular argues that accepting the US’s position that the ICCPR, including its Article 17 protection against “arbitrary or unlawful interference with [one’s] privacy, family, home or correspondence,” does not apply extraterritorially should be rejected and that the UNHRC should conclude that the US has violated this article through its surveillance activities. This document also notes that “the US’s position under Articles 2 and 17 [of the ICCPR] is in tension with the US’s own interpretation of its jurisdiction under the USA PATRIOT Act and other surveillance laws.” 

Rikke Frank Joergensen, Can human rights law bend mass surveillance?, Internet Pol’y Rev. (Feb. 27, 2014).

After providing a brief overview of PRISM, Joergensen lays out the basis for a right to privacy in international human rights law—Article 12 of the Universal Declaration of Human Rights and Article 17 of the ICCPR—and assesses PRISM under the criteria suggested by Martin Scheinin. He concludes that there is a strong argument that US surveillance techniques violate international human rights law but that, ultimately, further legal analysis and recommendations concerning extraterritorial privacy violations are necessary.

Mark Klamberg, FRA and the European Convention on Human Rights – A Paradigm Shift in Swedish Electronic Surveillance Law, Nordic Y.B. L. & Info. Tech. 96 (2010).

In section 3 of this articl, Klamberg discusses Article 8 of the ECHR, which protects the individual’s right to respect for his private life, including his home and correspondence. He notes that the ECtHR has determined that telephone, fax, and email communications are covered under this article and that the mere existence of laws, without any identifiable victims as of yet, may constitute a threat of interference. He also discusses the ECtHR’s case law regarding the Article 8 requirements that interference is only permissible if the measure is “1) in accordance with the law; 2) pursues certain interests; and 3) is necessary in a democratic society.”

Peter Margulies, The NSA in Global Perspective: Surveillance, Human Rights, and International Counterterrorism, 82 Fordham L. Rev. 2137 (forthcoming 2014).

Marguiles argues that the United States does have an extraterritorial duty to respect ICCPR rights, including the right to privacy under Article 17, but that the actual surveillance conducted does not violate this obligation. First, he asserts that when the surveillance is tailored and pursuant to judicial authorization and congressional oversight, that the surveillance does not violate Article 17’s prohibition on “unlawful interference.” Second, he suggests that it also does not violate the prohibition on “arbitrary interference” because U.S. practice does not diverge substantially from European practice and, to the extent that it does, the U.S. is owed deference since its procedural safeguards, namely the Foreign Intelligence Surveillance Court, provide meaningful constraints on the government.

Marko Milanovic, Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age, 55 Harv. J. Int’l L. (forthcoming 2014).

Milanovic argues that human rights treaties, such as the ICCPR and ECHR, apply to “foreign surveillance,” a category in which he includes “a wide range of activities conducted for the purpose of gathering intelligence, ranging from audio-visual observation or surveillance in a narrower sense, the interception of communications, electronic and otherwise, to the collection, storage, processing, and transfer of personal data to third parties.” In making this argument, he asserts that the right to privacy ought to transcend citizenship, but he is mindful of the various jurisdictional models that may apply. Ultimately, he suggests that foreign surveillance should be subject to the same fact-specific examination as domestic surveillance to determine that interferences are lawful and non-arbitrary. 

G. Alex Sinha, NSA Surveillance Since 9/11 and the Human Right to Privacy, 59 Loy. L. Rev. 861 (2014).

Responding to the position that the ICCPR does not apply extraterritorially, Sinha argues that “even under conservative assumptions about the scope of the NSA [surveillance] program and the coverage of the ICCPR, there is good reason to think that the program violates the Covenant.” Of particular interest is Part III (“Assessing the NSA’s Activities under International Human Rights Law”). That section provides a detailed discussion of the content of the right to privacy under the ICCPR and applies this framework to US surveillance, asserting that even if it is not “unlawful interference,” it should be considered “arbitrary interference.”

Michael JV White, A 21st Century Quagmire: Surveillance Laws and International Human Rights Norms, 8 Hum. Rts. Res., 2013, at 1.

In the section, “The right to privacy,” White lays out not only the basis for a right to privacy in international human rights law—Article 12 of the Universal Declaration of Human Rights and Article 17 of the ICCPR—but also provides an overview of the debate as to what the right to privacy encompasses, discussing the ECtHR and UNHRC among others. White provides a description of surveillance laws in three jurisdictions—the United States, the United Kingdom, and New Zealand—and presents concerns about the lack of transparency as a violation of the right to privacy.