As I was reading about the recent appointment of Prof. Joseph Cannataci, of the University of Malta, by the UN Human Rights Council as the first Special Rapporteur on privacy, I realized that the right to privacy in the digital age might die out if nothing urgent is done at global level.
For the first time in the history of UN an individual has been appointed to monitor, investigate and report on privacy issues and alleged violations in States across the world.
After remaining in the shadows for decades, the right to privacy is finally coming to the fore at the United Nations.
The appointment of a Special Rapporteur on the right to privacy was spearheaded by Germany and Brazil, two countries that have shown sustained commitment to improve the protection of privacy at the UN.
Especially, the 2013 revelations by Edward Snowden of the magnitude of electronic surveillance programmes run by the US National Security Agency (NSA) and some of its partners, chief among them the UK Government Communication Headquarters (GCHQ), have provoked intense public debate regarding the limits of such intelligence activities.
The development of modern surveillance technologies and the revelations of the surveillance practices of law enforcement and intelligence agencies have sparked debate in many States, prompting calls to reform national laws and policies to ensure they respect the right to privacy.
Beyond digital surveillance, the capacity of states and companies to collect, store, analyse and share personal data continues to increase. Privacy activists decry such programmes, especially those involving the mass collection of data or communications of ordinary individuals across the globe, an act that seemingly diminishes basic freedoms, while states justify them as necessary to maintain social harmony, or prevent terrorism, but when in reality they want to stifle opposition, criticism or activism.
Due to growing massive electronic surveillance in recent years, the right to privacy has come under the worst threat ever. As technology continues to tremendously evolve in the digital age, Western intelligence agencies, mostly, are conducting mass and indiscriminate surveillance of world communications, hence trampling upon privacy rights.
The USA, for example, as disclosed by Snowden, and some of its so-called “Five Eyes Alliance”(the UK, Canada, Australia and New Zealand) for intelligence information-sharing, spied on the leaders of allied governments, including Germany, Mexico, Brazil and Indonesia. Brazil and Germany were furious about USA’s surveillance programmes and, consequently, they sponsored a UN Resolution titled ‘The Privacy in the Digital Age’ to improve the effective enjoyment of human rights and fundamental freedoms, including privacy rights.
However, as it is known, USA used its hard lobbying tactics to persuade its fellow ‘Five Eyes’ to substantially water down the language of the Resolution, especially when it finds it contrary to its own interests. So, what legal status does that resolution have?
Technically speaking, UN GA Resolutions are not legally binding, but they have political, moral and (soft) legal significance in the eyes of international community. In regard to the UN Resolution on Privacy in the Digital Age, not only does it carry moral and political significance and manifests the global averse to mass-spying practices, it also demonstrates consensus on the importance of protecting data privacy.
Arguably, the foregoing resolution is a critical step towards better protection of the right. The resolution recognizes that any digital surveillance programme must comport with the right to privacy, and that any interference with the right to privacy must not be arbitrary and must be conducted on the basis of a legal framework, which is publicly accessible, clear, precise, comprehensive and non-discriminatory.
It can, however, be noted that the current legal framework has proved insufficient to meet above challenges.
National and regional privacy standards are too fragmented to provide effective protection, and international human rights instruments are too general.
For instance, Article 17 of the 1966 International Covenant on Civil and Political Rights (ICCPR) prohibits any arbitrary or unlawful interference with one’s privacy. However, State Parties to the Covenant are only obliged to respect and to ensure the rights recognized in the Covenant to all individuals within their territory and subject to their jurisdiction.
But, in case of remote surveillance or monitoring by international wireless telecommunications, for example, via satellite or radio relay links and the use of data thus obtained does not violate the territorial sovereignty of foreign states without a physical link does not violate customary international law.
For example, the tapping of Chancellor Merkel’s cell phone by the American Secret Service (known as NSA) does not breach international law. Nevertheless, in the end, the old saying still applies: “You spy, I spy, we all spy”.
The current fragmentation of privacy law suggests that greater attention should be given to the drafting of a dedicated international treaty. The treaty should more explicitly articulate the content of the privacy which has contributed to difficulties in its application and enforcement. It is also imperative to initiate a dialogue between the various stakeholders (governments, the private sector, individuals, civil organizations, etc) in order to build a consensus about how best to protect privacy in practice.
The writer is a lecturer and international law expert.