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Privacy And Surveillance Notes

BCL Law Notes > Criminal Justice, Security, & Human Rights Notes

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5: PRIVACY AND SURVEILLANCE (i) GENERAL READING Feldman: the scope of legal privacy What is privacy?
? A right to privacy derives its justification from three sources: some level of privacy is necessary for human flourishing o Personal autonomy - privacy helps to produce the conditions in which freedom of choice can be exercised without interference o Utility - people operating effectively and happily when they are allowed to make their own arrangements without state interference o Surveillance and the collection and use of personal information without consent fails in some degree to respect dignity and separateness of individuals - it's to do you ensuring mental and emotional security
? Whilst sometimes said to be individualistic, such privacy rights are better to be conceptualised as part of a balance between the interests of individuals, groups and the state ? privacy rights protect a sphere of action and DM for individuals against the power of the state, wielded in the PI
? Privacy rights are controversial bc they restrict state action but privacy is important to maintaining a functioning community as privacy allows group to form and function without undue interference and without it intimate relationships could not be formed and overall privacy should be seen as socially valuable
? Three factors tend to limit the extent of the protected sphere of privacy: o Responsibility the state adopts for the welfare of its citizens o The need for regulation (eg. Regulating professions/protecting consumers and thus requiring information) o The public interest in freedom of information
? It looks as though privacy rights are left in a weak position as they are protected insofar as they are compatible with the PI - clear from A8 ECHR; BUT important to note that privacy is given its special status as a human right is its close connection with ideas of dignity and autonomy; so the state can interfere with these rights, but this interference must be clearly justified Positive and negative aspects:
? Negative: the right to be left alone/the right to freedom from intrusion as a core aspect of the right to privacy
? Positive: these elements are more elusive/controversial o Duty on the state to foster conditions in which privacy can be enjoyed o A right to have access to information held by the government which is sensitive and may affect ability to make an autonomous decision o Where the right can be interfered this, the strength of the interest in privacy may demand the imposition of special procedures before the interference can take place Privacy law in the US:
? 'The right to be left alone' in US jurisprudence from the 1880s and subsequently came to be regarded as a constitutional right ? implied right to privacy in the fourth amendment, despite not being mentioned directly in the text and the first amendment also protects autonomy rights, central to individual autonomy aspects of privacy
? Despite being of uncertain scope, the right to privacy in the US constitution has been durable - it is soundly based in the right to make decisions about the conduct of on'es life within the sphere of personal autonomy and the interest at the root of the constitutional protection for privacy in the US is personal autonomy and the issue is the extent to which the individual should be protected against interference from public authorities and the core meaning of this right is the right to be let alone Privacy in intl law and under the HRA:
? The formulation of the right: positive and negative obligations
? Most intl HR's instruments recognise a right to privacy, but there is an

interesting contrast between formulations A17 ICCPR (*identical to A12 of the universal decl of HR's, except not divided): (1) = negative formulation (freedom from arbitrary or unlawful interferences) but (2) = positive right (the state must ensure that the law protects people against arbitryary and unlawful itnerferences with privacy); clear under (1) that this formulation of the right to privacy with its reference to 'honour and reputation' as being founded on the idea of dignity
? A8 ECHR: the rights are more extensive and clearly drawn but no link to honour or reputation and so A8 can be said to be about doing and living and not just maintaining dignity for its own sake; instead of giving a right to be free from interference, A8 gives a right to respect and this movement might seem to weaken the right, as arguments could be made that interference might not indicate a lack of respect BUT we need to recognise there has been a considerable extension of the right which the notion of respect may entail (eg. Respect for correspondence and link to prisoner's rights) and it is important to note that a right to respect is capable of imposing positive duties because it can be interpreted as requiring active measures to be taken to enable people to have a private and family life
? ECtHR has affirmed that positive obligations arise out of A8 eg. In child care decisions which affect the family
? This interpretation of article in the ECHR imposing positive obligations also exists with respect to other rights: eg. Implicit within A6 rights to have a right of access to a tribunal (golder v UK)
? Grounds on which interferences may be justified under A8(2): o In accordance with law:
? Domestic law to be compatible with RoL - considering the quality of the law
? Even in relation to national security, the law should lay down the conditions under which and purposes for which the power may be exercised with at least sufficient clarity to provide some control over authorities' behaviour and if this is not done, there wont be adequate legal protection in domestic law against arbitrary interference, particularly where these interferences are taking place in secret o Purpose specified in A8(2) o Necessity and proportionality:
? States given a margin of appreciation in making policy choices but the freedom is not unconstrained - measures adopted must respond to a pressing social need and must not exact a higher price than is necessary and acceptable in a democratic society The slow movement towards negative privacy rights in English law
? Until recently, English law left little scope for the protection of privacy as the protection of privacy only had limited importance in English culture
? Although there was law which protected certain interests associated with privacy (eg. Under property law), until relatively recently English judges nor Parliament thought in terms of a right to privacy and this was because of the difficulty in defining the right with any clarity
? The lack of a right to privacy against the state became evidence in Malone - the view was that anyone was entitled to do anything not prohibited by law but this was unsatisfactory ? not taking account of the power imbalance between individuals and the state but until the HRA = no statute gave effect to a right to privacy (*might be possible to now state with developments in the CL that there is a tentative right to privacy) Positive rights protecting private and family life in English law
? Restrictions on the use of personal information as well as access to and correction of stored information PRIVACY: THE FOUNDATION
? It is important to work out where one stands on the question of the fundamental justification for pribacu rights because eit is likely to dicyaye the use to which one??

can put them Historically and theoretically the notion of privacy has emerged from a political ideal of the individual, the family and small groups of people working together consensually for a common object as the basic elements in society The rights under A8 of the ECHR and the privacy rights under the US constitution are founded on the fundamental importance of these units to people's psychology and selffulfilment, to their opportunity to participate in democratic political processes and to the welfare of society Right to respect for personal information far from being core elements are usually parasitic on these foundational privacy rights: respect for individual dignity, selfdetermination, family relationships etc. ? it is autonomy itself, the freedom to pursue one's own objectives and life style and to enjoy personal space, which is the fundaemtnal justification for privacy related rights

? Canada and aus = prior indp scrutiny by judicial expertse cf. uk exec Germany: disclosure principle - unless threaten national sec, subject of warrant to be informed of the interception after it has taken place - approved in Klass cf. UK Milanovic: human rights treaties and foreign surveillance Summary: Minanovic considers the threshold question of whether the ECHR and the ICCPR apply extraterritorially to foreign surveillance activities and argues that human rights treaties DO apply to foreign surveillance activities; he argues any proposed limits on ET application will ultimately prove unstable and unpersuasive, since they are not supported by any coherent normative theory as to why a certain group of people is deserving of privacy protection while a different one is not; he argues the real discussion should not be focusing on this threshold issue but on what is included within the substance of an extraterritorial right to privacy

? Privacy activists argue that surveillance programs, especially including the mass collection of data create an inhibiting surveillance climate, diminishing basic freedoms
? Article looking at how the legality of such programs would be debated and assessed within the framework of intl HR law - the ICCPR and the ECHR
? The provisions of this treaty are broad and vague and coupled with the threshold question of whether they would apply to ET surveillance - while there are uncertainties regarding the application of these treaties to intelligence gathering, the questions are not insurmountable
? Respect and protect - respect = negative; protect = positive
? All individuals are deserving of some protection for their privacy because of their equal, inherent human dignity
? There is uncertainty in the case law as to how the jurisdictional threshold issue applies, but this uncertainty need not to be overestimated and human rights treaties should apply to virtually all foreign surveillance activities and then substantive analysis should follow based on merits of compliance with privacy rights Do foreigners deserve privacy?
Citizenship and the social contract:
? US discourse: emphasises citizenship as a basis for fundamental rights
? But what are the justifications for a citizenship oriented approach? ? seems to be based on a contractarian conception, social contract theory
? The application of social contract theories in this context is problematic
? Even if one accepts the general validity of social contract theories, it does not follow that the contract protects only its parties and others are completely excluded - doesn't necessarily mean governments can't owe duties to non-citizens as well
? If the right to privacy is justified on conceptions of dignity and personal autonomy, can there be a justification for distinguishing between citizens and non-citizens? ?
grounding fundamental rights in citizenship is open to critiques of moral arbitrariness and manifest inconsistency
? Even among ardent contractarians it is routinely accepted that foreigners will have rights on US territory - if the argument is one is entitled to rights by virtue of citizenship and being a member of the social contract, why does one become deserving of protection by simply being on US soil?
? The question of ET applications was not predetermined by the framers, it has always been a moral choice The decline of citizenship
? Obama: administration to treat citizens and non citizens alike in the TK context - grounded in a universalist conception of individual rights and the need to respect the inherent dignity of every human life
? Can't be grounded on democratic participation - if a tourist is granted rights, it is clear these people don't participate in American system of self-governance
? Review Group - presents the view that privacy is central to human dignity and Obama took up the dignity/universality theme in his response
? This explicit recognition of the fact that foreigners have dignity and privacy interests deserving of respect is of great importance and undermines the social contractarian thinking Citizenship and human rights
? This decision has already been made in the intl HR's system - human rights are not to turn on nationality and treaties are not social compacts ? the idea is about universality
? The threshold question should in principle not depend on whether they have that state's nationality and holding such a position potentially implications not only privacy guarantees but equality/non-discrimination positions
? Under the moral logic of HR law, citizens and non-citizens are equally deserving of protection Interpreting the ICCPR Comparing the ICCPR and the ECHR
? The main difference is the ICCPR's mention of territory and explicit distinction between

obligations to respect and ensure human rights (*ECHR only speaks of the obligation to respret in heading of A1 but speaks of ob to secure in the actual text)
? Both refer to jurisdiction The US position on the ICCPR
? The fact that the interpretation of the ICCPR is not clear and open to several possibilities of interpretation should be acknowledge - but reading that language to disallow ET application is contrary to the object and purpose of the treaty
? It should also be noted that the US only adopted this categorical position in 1995 Applying the Auschwitz rule: the ICCPR's text
? Could be open to an interpretation that and and or is interchangeable and where there are several plausible readings we should prefer the one that more accords with the object and purpose of the treaty ? this is where the universalist normative foundations of HR's come in - an interpretation valuing all humans equally and being respect of their dignity is more preferable than an interpretation that does not
? The consequence of the absolutist position would be that the ICCPR can never apply extraterritorially ? argument when one faces two interpretations, they should favour an interpretation under which Auschwitz would be considered a HR's violation
? The position that the ICCPR should never apply ET seems untenable - not supported by normative theory as to why HR's should stop at the border Models of ET application Generally:
? Spatial mode (effective control of area); personal model (jurisdiction as authority and control over ind's) and model distinguishing between positive and negative obligations under treaties
? Spatial model - too limiting
? Personal model - capable of overreach
? Pos and neg obligations - favoured model; the distinction is between the overarching pos obs of states to secure/ensure HR's which extends to preventing HR's violations by third parties and the neg ob of states to respect HR's
? Under this model, jurisdiction would mean effective control over areas and positive obs predicated on state having control over this area - what they need to comply but under the ne gob to respect HR's, territory wouldn't matter
? The rationale for not limiting neg obs is that states are always able to comply - they remain in control of their own organs and agents
? The moral logic of universality is brought to its ultimate conclusion, whilst jurisdiction can still serve as a limiting factor for positive obs Do HR's apply to ET interferences with privacy Generally?
? Argument - HR's treaties apply to most if not all foreign surveillance activities The substance of ET right to privacy
? An ET right to privacy would emphatically not mean the end of all traditional and novel methods of foreign espionage and surveillance nor a complete elision of all distinctions between internal and external surveillance
? The HR's framework is sufficiently flexible so as to accommodate legitimate governmental interests whilst still being able to have an impact on surveillance practices Report of the office of the UN High Commissioner for HRs - the right to privacy in the digital age
? [15] Several contributions highlighted that when conducted in compliance with the law, including intl HR law, surveillance can be a 'necessary and effective measure' for legitimate law enforcement or intelligence purposes
? Revelations about digital mass surveillance data have raised questions around the extent to which such measure are consistent with intl legal standard and whether strong surveillance safeguards are needed to protect against violations against HR's
? [29]: A law that is accessible but does not have foreseeable effects will not be adequate and the secret nature of specific surveillance powers brings with it a greater


risk of arbitrary exercise of discretion which in turn demands greater precision in the rule governing the exercise of discretion and additional oversight o The focus appears to be on providing procedural protection of the right to privacy (ie. ensuring adequate safeguards in place to ensure incursions on the right to privacy are justified) o Does it look like interference with the right to privacy is taken for granted and the issue is with whether this interference is justified?
[38] In 2009, the Special Rapporteur on the promotion and protection of HR's and fundamental freedoms while countering terrorism suggested that there must be no secret surveillance that is not under review of an indp oversight body and all interferences must be authorised through an indp body o Query whether this is the case in the UK with the IPT?

Emmerson: promotion and protection of HRs and fundamental freedoms while countering terrorism
? ???? Summary: Emmerson considers the use of mass digital surveillance for counter terrorism purposes and considers the implications for the right to privacy, under A17 of the ICCPR
??????Introduction and overview: o Exponential growth in states' technological capabilities over the past decade has improved the capacity of intelligence/law enforcement agencies to carry out targeted surveillance of suspected ind's and organisations o Interception clearly represents a valuable source of information for states to investigate, forestall and prosecute acts of terrorism/serious crime o The dynamic pace of technological change has enabled some states to secure bulk access to communications/content data without prior suspicion o The communications of literally every internet user are potentially open for inspection by intelligence and law enforcement agencies in the states concerned which amounts to a systematic interference with the right to respect for the privacy of communications and requires a correspondingly compelling justification o A17 provides that any interference with private communications must be prescribed by law and nec/proportionate means of achieving a legitimate public policy objective o Merely to assert without particularization that mass surveillance technology can contribute to the suppression/prosecution of acts of terrorism does not provide an adequate HR law justification for its use o Intl HR law requires states to provide an articulable and evidence based justification for any interference with the right to privacy whether on an ind or mas scale o It is a central axiom of proportionality that the greater the int with protect HR's, the more compelling the justification must be to meet the requirements of the Covenant o The hard truth = the use of mass surveillance technology 'effectively does away with the right to privacy of communications on the internet altogether' o By permitting bulk access, the tech eradicates the possibility of any individualized proportionality analysis and permits intrusion without independent or any prior authorisation based on suspicion directed towards a particular ind/organisation ? ex ante scrutiny is only possible at the highest level of generality o Since there is no target-specific justification, it is incumbent on states to justify the gen practice and the proportionality analysis is thus shifted from the micro to the macro level o 'The sheer scale of the interference with privacy rights calls for a competing public policy justification of analogical magnitude' o An assessment of proportionality in this context involves striking a balance between societal interests in protecting online privacy and the undoubted imperatives of effective counter-terrorism and law enforcement

We need informed public debate to determine where this balance should be struck o It is a prerequisite for any assessment of the lawfulness of such measures that the states are transparent about their methodology and its justification - otherewise there is a risk that systematic interference with the security of digital communications will continue to proliferate without any serious consideration being given to the implications of the 'wholesale abandonment of the right to online privacy' o Any suggestion that users have voluntarily forfeited their right to privacy is 'plainly unwarranted' ? no express/unequivocal waiver given on an informed basis o [18]: the adoption of mass surveillance techn undoubtedly impinges on the very essence of that right and it potentially inconsistent with the principle that states should adopt the least intrusive means available when entrenching on protected HR's; it excludes individualized proportionality assessments and is hedged around by secrecy claims that make other forms of proportionality analysis extremely difficult o [18]: the very existence of mass surveillance programmes constitutes a potentially disproportionate interference with the right to privacy ?
it is incompatible with existing concepts of privacy for states to collect all communications or metadata all the time indiscriminately - the very essence of the right to the privacy of communication is that infringements must be exceptional and justified on a case by case basis o Terrorism threats can provide a justification for mess surveillance, but only if the states using this tech can demonstrate with particularity the tangible counter-terrorism advantages shown to have accrued from its use ? the onus is on states to explain promptly, precisely and publicly why such a wholesale intrusion into collective privacy is justified
? but if they do this - isn't this undermining the whole objective by alerting the terrorists to the methods they are using and the benefits they are gaining?
? ???? Recent disclosures concerning the nature and extent of states' digital surveillance capabilities o Notes the difference in approach between the US and UK in response to disclosures/leaks
? US exec/leg have taken a no. of steps in response to the disclosures (see
[23] for the key developments)
? cf. UK where statements have been made that any data obtained from the US involving UK nationals is 'subject to proper UK stat controls/safeguards' (foreign sec statement in P); The Intelligence and Sec Committee also issued a statement that no UK law had been violated (but note: did decide further investigations merited in order to examine the stat framework and introduction of the bill but this bill is described as 'clarifying' the nature and extent of obligations which can be imposed on telecommunications and internet service providers in the UK)
? ???? Mass surveillance, counter-terrorism and the right to privacy o 28. Privacy can be defined as the presumption that individuals should have an area of personal autonomous development, interaction and liberty free from State intervention and excessive unsolicited intrusion by other uninvited individuals. The duty to respect the privacy and security of communications implies that individuals have the right to share information and ideas with one another without interference by the State (or a private actor), secure in the knowledge that their communications will reach and be read by the intended recipients alone.23 The right to privacy also encompasses the right of individuals to know who holds information about them and how that o

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