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

The article discusses the uncertainty surrounding the interpretation and application of the right to privacy norms under Article 17 of the International Covenant of Civil and Political Rights 1966 in the context of State sponsored cyber surveillance. The paper supports the updating of General Comment No. 16 to Article 17. To that end, it focuses on two fundamental aspects of this process, namely the development of more detailed understanding of what is meant by the right to privacy in the 21st century and the challenge posed by foreign cyber surveillance to the principle of extraterritorial application of human rights

The Role of International Human Rights Law in the Protection of Online Privacy in the Age of Surveillance

Whilst the political dust on mass surveillance is slowly settling down, what has become apparent is the uncertainty regarding the interpretation and application of the right to privacy norms under Article 17 of the International Covenant on Civil and Political Rights 1966 in the context of cyberspace. Despite the world-wide condemnation of these practices by, inter alia, the United Nations and international human rights organisations, little consensus has been reached on how to bring them in line with international human rights law. This paper proposes that the most pragmatic solution is updating Article 17 by replacing General Comment No.16. There are many issues that require attention. The paper focuses on two fundamental aspects of this process, namely the development of more detailed understanding of what is meant by the right to privacy in the 21st century, and the challenge posed by foreign cyber surveillance to the principle of extraterritorial application of human rights treaties. To that end, the paper identifies that the ‘effective control’ test, developed by international human rights courts and bodies adopted to determine jurisdiction, is unsuitable in the context of state-sponsored cyber surveillance. The paper considers a number of suggestions made by legal scholars, which hinge on the control of communications, rather than the physical control over areas or individuals. Such a ‘virtual control’ approach seems in line with the jurisprudence of the European Court of Human Rights, according to which extraterritorial obligations may arise when states exercise authority and control over an individual’s human rights, despite not having physical control over that individual. The paper argues that the ‘virtual control’ test, understood as a remote control over the individual’s right to privacy of communications, may help to close the normative gap that state intelligence agencies keenly exploit at the moment

Keystones to foster inclusive knowledge societies: access to information and knowledge, freedom of expression, privacy, and ethics on a global internet

The transnational and multi-dimensional nature of Cyberspace and its growing importance presents new frontiers with unparalleled opportunities and challenges for access to information and knowledge, freedom of expression, privacy and ethics. The Internet Study being undertaken by UNESCO is seeking to provide the necessary clarity to support holistic approaches to addressing this broad range of interrelated issues as well as their short and long-term effects. The study was built on a year-long multistakeholder consultation process, which involved several rounds of consultation with member states and other actors, as well as almost 200 major responses to an online questionnaire. The Study includes the Options for future actions of UNESCO in the Internet related issues, which has served as a basis for the Outcome Document as adopted by the CONNECTing the Dots Conference on 3 and 4 March 2015. The Study also affirmed that the same rights that people have offline must be protected online, and good practices are shared between Member States and other stakeholders, in order to address security and privacy concerns on the Internet and in accordance with international human rights obligations. The Study also supports the Internet Universality principles (R.O.A.M) that promote a human rights-based approach, including freedom of expression, privacy, open Internet, accessible to all and characterized by multistakeholder participation

Protecting Information Privacy

This report for the Equality and Human Rights Commission (the Commission) examines the threats to information privacy that have emerged in recent years, focusing on the activities of the state. It argues that current privacy laws and regulation do not adequately uphold human rights, and that fundamental reform is required. It identifies two principal areas of concern: the state’s handling of personal data, and the use of surveillance by public bodies. The central finding of this report is that the existing approach to the protection of information privacy in the UK is fundamentally flawed, and that there is a pressing need for widespread legislative reform in order to ensure that the rights contained in Article 8 are respected. The report argues for the establishment of a number of key ‘privacy principles’ that can be used to guide future legal reforms and the development of sector-specific regulation. The right to privacy is at risk of being eroded by the growing demand for information by government and the private sector. Unless we start to reform the law and build a regulatory system capable of protecting information privacy, we may soon find that it is a thing of the past

The dawn of the age of the drones: an Australian privacy law perspective

Examines Australia\u27s privacy laws in relation to unmanned aerial vehicles, to identify deficiencies that may need to be addressed. Introduction Suppose a homeowner habitually enjoys sunbathing in his or her backyard, protected by a high fence from prying eyes, including those of an adolescent neighbour. In times past such homeowners could be assured that they might go about their activities without a threat to their privacy. However, recent years have seen technological advances in the development of unmanned aerial vehicles (‘UAVs’), also known colloquially as drones, that have allowed them to become reduced in size, complexity and price. UAVs today include models retailing to the public for less than $350 and with an ease of operation that enables them to serve as mobile platforms for miniature cameras. These machines now mean that for individuals like the posited homeowner’s adolescent neighbour, barriers such as high fences no longer constitute insuperable obstacles to their voyeuristic endeavours. Moreover, ease of access to the internet and video sharing websites provides a ready means of sharing any recordings made with such cameras with a wide audience. Persons in the homeowner’s position might understandably seek some form of redress for such egregious invasions of their privacy. Other than some form of self-help, what alternative measures may be available? Under Australian law this problem yields no easy answer. In this country, a fractured landscape of common law, Commonwealth and state/territory legislation provides piecemeal protection against invasions of privacy by cameras mounted on UAVs. It is timely, at what may be regarded as the early days of the drone age, to consider these laws and to identify deficiencies that may need to be addressed lest, to quote words that are as apt today as they were when written over 120 years ago, ‘modern enterprise and invention … through invasions upon [their] privacy, [subject victims] to mental pain and distress, far greater than could be inflicted by mere bodily injury.

Surveillance, big data and democracy: lessons for Australia from the US and UK

This article argues that current laws are ill-equipped to deal with the multifaceted threats to individual privacy by governments, corporations and our own need to participate in the information society. Introduction In the era of big data, where people find themselves surveilled in ever more finely granulated aspects of their lives, and where the data profiles built from an accumulation of data gathered about themselves and others are used to predict as well as shape their behaviours, the question of privacy protection arises constantly. In this article we interrogate whether the discourse of privacy is sufficient to address this new paradigm of information flow and control. What we confront in this area is a set of practices concerning the collection, aggregation, sharing, interrogation and uses of data on a scale that crosses private and public boundaries, jurisdictional boundaries, and importantly, the boundaries between reality and simulation. The consequences of these practices are emerging as sometimes useful and sometimes damaging to governments, citizens and commercial organisations. Understanding how to regulate this sphere of activity to address the harms, to create an infrastructure of accountability, and to bring more transparency to the practices mentioned, is a challenge of some complexity. Using privacy frameworks may not provide the solutions or protections that ultimately are being sought. This article is concerned with data gathering and surveillance practices, by business and government, and the implications for individual privacy in the face of widespread collection and use of big data. We will firstly outline the practices around data and the issues that arise from such practices. We then consider how courts in the United Kingdom (‘UK’) and the United States (‘US’) are attempting to frame these issues using current legal frameworks, and finish by considering the Australian context. Notably the discourse around privacy protection differs significantly across these jurisdictions, encompassing elements of constitutional rights and freedoms, specific legislative schemes, data protection, anti-terrorist and criminal laws, tort and equity. This lack of a common understanding of what is or what should be encompassed within privacy makes it a very fragile creature indeed. On the basis of the exploration of these issues, we conclude that current laws are ill-equipped to deal with the multifaceted threats to individual privacy by governments, corporations and our own need to participate in the information society

The challenge to privacy from ever increasing state surveillance: a comparative perspective

This article explores how internet surveillance in the name of counterterrorism challenges privacy. Introduction International terrorism poses serious threats to the societies it affects. The counter-terrorism measures adopted since 2001 have sought to limit the advance of terrorism but, in the process, also created enormous challenges for (transnational) constitutionalism. Long-held and cherished principles relating to democracy, the rule of law and the protection of a wide range of human rights have come under increasing strain. Legislative authority to shoot down hijacked aircrafts or to use lethal drones against suspected terrorists affect the right to life; waterboarding of prisoners and other inhumane practices contravene the prohibition of torture; extraordinary renditions and black sites circumvent constitutionally protected rights and processes, including the right to freedom and security, the right to a fair trial and due process for suspected terrorists; ill-defined terrorism offences undermine the rule of law and personal freedom; blanket suspicion of Muslims as terror sympathisers impacts on freedom of religion and leads to unfair discrimination; and mass surveillance of communication sweeps away the right to privacy. This article explores how internet surveillance in the name of counterterrorism challenges privacy. In Part II, the article analyses the international dimension of counter-terrorism measures and the conceptualisation of data protection and privacy in the European Union (‘EU’), the United States of America (‘US’) and Australia. Part III compares the different concepts of data protection and privacy, and explores the prospects of an international legal framework for the protection of privacy. Part IV concludes that work on international data protection and privacy standards, while urgently needed, remains a long-term vision with particularly uncertain prospects as far as antiterrorism and national security measures are concerned

Toward a social compact for digital privacy and security

Executive summary The Global Commission on Internet Governance (GCIG) was established in January 2014 to articulate and advance a strategic vision for the future of Internet governance. In recent deliberations, the Commission discussed the potential for a damaging erosion of trust in the absence of a broad social agreement on norms for digital privacy and security. The Commission considers that, for the Internet to remain a global engine of social and economic progress that reflects the world’s cultural diversity, confidence must be restored in the Internet because trust is eroding. The Internet should be open, freely available to all, secure and safe. The Commission thus agrees that all stakeholders must collaborate together to adopt norms for responsible behaviour on the Internet. On the occasion of the April 2015 Global Conference on Cyberspace meeting in The Hague, the Commission calls on the global community to build a new social compact between citizens and their elected representatives, the judiciary, law enforcement and intelligence agencies, business, civil society and the Internet technical community, with the goal of restoring trust and enhancing confidence in the Internet. It is now essential that governments, collaborating with all other stakeholders, take steps to build confidence that the right to privacy of all people is respected on the Internet. It is essential at the same time to ensure the rule of law is upheld. The two goals are not exclusive; indeed, they are mutually reinforcing. Individuals and businesses must be protected both from the misuse of the Internet by terrorists, cyber criminal groups and the overreach of governments and businesses that collect and use private data. A social compact must be built on a shared commitment by all stakeholders in developed and less developed countries to take concrete action in their own jurisdictions to build trust and confidence in the Internet. A commitment to the concept of collaborative security and to privacy must replace lengthy and over-politicized negotiations and conferences

Democracy and Digital Authoritarianism: An Assessment of the EU’s External Engagement in the Promotion and Protection of Internet Freedom. College of Europe EU Diplomacy Paper 01/2020

The past decade has seen a gradual global increase in digital authoritarianism. Internet shutdowns, online censorship, mass surveillance and violations of privacy rights have all become more frequent in parts of the world where citizens are not guaranteed sufficient digital rights. The task of defending, promoting and protecting internet freedom is becoming increasingly relevant for the European Union (EU) − for internal digital and cybersecurity policies as well as for the EU’s external promotion of democracy and human rights. Whilst much has been written about the various internal policies which establish and protect internet freedom within the European Union and its member states, the EU’s external engagement in this field remains critically under-researched. To what extent does the EU engage externally in the promotion and protection of internet freedom? This paper answers this question by covering a wide variety of policy fields including human rights and democracy promotion, digital policy, enlargement and neighbourhood policy, development cooperation and trade policy. Whereas the EU faces a limited opportunity to shape global norms with regard to internet freedom or to change the course of digitally authoritarian states, it has demonstrated several strengths which deserve not to be overlooked. These include, for example, the externalisation of internal data protection and policies and the provision of direct support and protection for civil society. Despite facing significant obstacles, the promotion and protection of internet freedom has become an important area of the EU’s external action which is only set to become more relevant in the coming years

"Internet universality": Human rights and principles for the internet

This paper details proposals by UNESCO to manufacture and draft a concept of “Internet Universality” that adopts a human-rights framework as a basis for articulating a set of principles and rights for the Internet. The paper discusses various drafts of this concept before examining the Charter of Human Rights and Principles for the Internet put forward by The Internet Rights & Principles Dynamic Coalition based at the UN Internet Governance Forum, and the working law Marco Civil da Internet introduced by Brazil