The challenge to privacy from ever increasing state surveillance: a comparative perspective (original) (raw)
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(2014) 37 University of New South Wales Law Journal 748-783, 2014
This article explores how Internet surveillance in the name of counter-terrorism challenges privacy. In the Part II, the article analyses the international dimension of counter-terrorism measures and the conceptualisation of data protection and privacy in the European Union, the United States of America 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 particular uncertain prospects as far as anti-terrorism and national security measures are concerned.
Terrorism, Surveillance and Privacy: Assessing the Excesses
Privacy is an essential element of a free society without which individuals would lose the ability to interact with one another in private. For instance, following the September 11 terrorist attacks in the United States and subsequent attacks on other influential western countries, new laws have been put in place arguably as an effective tool to prevent terrorist attacks and conjointly fight the war on drugs. And with the advancement in police surveillance technology, there is a clash between an individual’s right to privacy and the State’s power to infringe that right. This paper to illustrate the emerging invasion on privacy for the sake of security and in response to terrorism will focus on money laundering, terrorist financing, government investigative surveillance and data mining. Apart from using the Patriot Act of the U.S as the primary source of legislation to illustrate how governments introduce laws, unaccepted by the general population as a clear invasion of their privacy, similar anti-terrorist legislation from other western jurisdictions will be discussed for comparative purposes. Also the paper will shed light on the effectiveness of these new laws on one hand and use case law to illustrate how courts have been reluctant in invalidating laws that infringe constitutionally given right to privacy on the other. As it seeks to give possible alternative measures to deal with acts of terrorism, the paper will argue that right to privacy has seen a shift from its traditional understanding since the emergence of terrorism and therefore, to curb privacy invasion, stricter laws regulating the government’s power to interfere with privacy rights are needed.
The present study provides a “global” perspective on the protection of privacy in the fight against the use of Internet for terrorist purposes. The paper reiterates the fact that in countering terrorism, the right to privacy is often challenged by the right to security. Its main objective is twofold: firstly, to put forward the importance that the right to privacy represents for all democratic societies obeying the rule of law and, secondly, to show that security is an important right that has also been lately challenged due to the advancements in technology, which have been abused for terrorist purposes. The paper advocates for the implementation of a coherent international framework, with clear and efficient norms, which would enable States to apply equal standards in the investigation of Internet-related matters and which would ensure the respect of privacy and correlated human rights, while providing an efficient setting for cooperation between States and organisations.
An International Constitutional Moment for Data Privacy in the Times of Mass-Surveillance
International Journal of Law and Information Technology, 2015
Recently, there have been a lot of intense discussions on how human rights treaties might apply to extraterritorial mass-surveillance programmes. In the light of an increasingly prominent role that data privacy is gaining in the UN agenda in recent months, this article aims to make an original contribution to the international data privacy discourse by scrutinizing the different approaches to customary international law formation and applying these insights to ‘data’ privacy—as opposed to a general right to privacy—to examine whether it could be considered as a binding legal principle under international law. The article argues that different perspectives on customary international law and their respective methodologies of ‘deduction’ and ‘induction’ have different implications for the analysis of data privacy. Whereas under the so-called traditionalist perspective it could be doubted that data privacy has developed into a rule of customary international law, modernist approaches lead to different conclusions. The modern theories stipulate that a steady advancement of technologies in combination with a continued emphasis on international security and the unprecedented shock that international community is undergoing because of mass-surveillance revelations and spying activities of Western and potentially other governments, constitute the circumstances or period of fundamental change—the so-called ‘international constitutional moment’, paving the path for the swift development of a new rule of customary international law—the right to data privacy. Recognizing the ‘relativity’ of the different findings and conclusions, the article favours the modern approach and infers that data privacy has indeed crystallized into a norm of customary international law.
2017
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 tre...
Rethinking Privacy Beyond Borders. Developing transnational rights on data privacy
2021
This paper analyses the tension between transnational data exchange by police authorities as well as intelligence agencies on the one hand and the need for data privacy on the other hand. Section 2 starts with an analysis of the current developments in the European Union and illustrates that a rights-based approach can overcome the ambivalent dynamics of counter-terrorism and police cooperation regarding data privacy. Section 3 opens up the European perspective towards a broader comparative overview of data protection in the United States (US) and Australia. The domestic potential of a rightsbased approach of data privacy with regard to counter-terrorism and police investigations will be figured out. Section 4 finally suggests an international rights-based approach to tackle the problem of data privacy in transnational counter-terrorism activities and concludes that more distinct rights of individuals have to be developed with regard to data privacy on a national and international level.
Beyond terrorism: data collection and responsibility for privacy
Abstract Purpose – The purpose of this paper is to examine privacy rights and the relationship between those rights and business and government interests in data collected from individuals. Design/methodology/approach – This paper approaches legal issues from the perspective of the consumer or citizen. Findings – While conducting research for this paper, it was found that the issues facing the citizenry on privacy protection have been addressed extensively in the not too distant past. The distinguishing characteristic is the speed with which data can be collected and disseminated and the infinitely more vast amount of personal data being collected not only by the government and businesses with whom consumers conduct transactions, but also by independent data brokers. Originality/value – Privacy rights are ephemeral and difficult to measure. Businesses, therefore, appear to have difficulty determining the value of protecting consumers’ privacy. Additionally, governments from which citizens derive many social services accumulate substantial personal information given in exchange for those services. Businesses and governments are increasingly negligent in protecting the data collected on individuals, which has been revealed by a series of reported data breaches, disclosures, thefts, and surveillance activities. This paper addresses the inherent value in protecting the privacy interests of individuals and proposes that more robust privacy laws, derived from established tort law, be developed and used by concerned persons. Keywords: Data collection, Law, Privacy, Human rights, Knowledge management, Consumers Paper type: Conceptual paper