2 - Digital Surveillance, Meta Data and Foreign Intelligence Cooperation

Summary

When a few years ago the discussion of how to deal with the increasing digital interception of private communications started, the call for a new legal instrument quickly erupted. However, this is not a blind spot of international law. The Human Rights Committee has used cyber-related developments as an opportunity to unpack the right to privacy in the context of its state reporting procedure. The chapter describes and systemises the Committee’s interpretation of Article 17 with respect to digital surveillance, meta data retention and foreign intelligence cooperation. It demonstrates that the Covenant provides the necessary legal ground to confront new technological challenges without ignoring the exigencies of the altering security situation. The Committee, having identified various shortcomings in national legal frameworks, has specified the necessary safeguards to effectively protect the right to privacy against arbitrary interference. It has also clarified the territorial scope of protection, which is not limited to domestic measures but extends to transnational surveillance and digital intelligence-sharing. The chapter concludes by describing new issues which the Committee will need to consider in the future, and makes recommendations for the conceptualisation of the right to privacy in the digital age more generally.