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WHAT IS THE LAW?

The Right to Privacy

Government surveillance clearly poses a threat to the human right to privacy.

The right to privacy is recognised in Article 12 UDHR, Article 17 ICCPR, Article 8 ECHR, and Article 11 of the American Convention on Human Rights. The African Charter does not contain an explicit reference to the right to privacy.

Article 17 of the ICCPR is a global standard, which states:

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

The UN Human Rights Committee has explained more about the right to privacy in its General Comment on Article 17.

In essence, governments must not engage in arbitrary (or unreasonable) or unlawful invasions of privacy.  Therefore, even if government spying is lawful under certain national laws, it is a breach of international human rights law if the spying is carried out arbitrarily. Certainly, the targeted surveillance of those reasonably suspected of serious crime is allowed. Furthermore, the dangers posed by terrorism in many countries are serious enough to warrant surveillance powers. However, it is likely that such powers must be limited and targeted, rather than focused indiscriminately, in order to comply with the right to privacy.

International and Comparative Cases and Materials

Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources (2014), a decision about data retention laws by the European Court of Justice (the European Union court) regarding the right to privacy in Article 7 of the Charter of Fundamental Rights of the European Union. Explanations of the case, which found that EU laws on data retention breached the right to privacy, may be found here (short and short) and here (long).

This report from the UN Special Rapporteur (a special investigator) on freedom of expression in 2013, highlighting the dangers of mass surveillance for freedom of speech.

This report from the UN Special Rapporteur on Human Rights and Terrorism from September 2014, finding that mass surveillance programs such as those conducted by the NSA are "corrosive" of privacy rights, and also discriminatory against non nationals.

This report by the UN High Commissioner for Human Rights on Surveillance and Human Rights in September 2014. The High Commissioner concludes that the practices of many governments violate their human rights obligations due to weak procedural safeguards, ineffective oversight, lack of accountability and limited legal statutory restrictions. The report also stresses that human rights obligations apply globally, so as to apply to surveillance undertaken and data collected outside a country's borders.

In contrast, Peter Margulies, Professor at Roger Williams University, argues that (starting at page 2158) most of the NSA's surveillance programmes would comply with international human rights standards, although he stresses a general need for better oversight. He largely applies the European Court of Human Rights' approach to privacy, which permits some surveillance without court authorisation (Kennedy v United Kingdom), the bulk collection of internet data (Weber v Germany), and surveillance without clearly identified statutory criteria  (Weber v Germany).

The Victorian Charter of Human Rights and Responsibilities (2006)

The Victorian Charter of Human Rights and Responsibilities includes the right to privacy (under section 13(a)). It has been applied in the context of government surveillance, but only in the limited circumstances of direct supervision orders (exclusively applied to those deemed to be pose an “unacceptable risk” to the community upon release), and in most cases has not been found to have been violated (see here). However, the Victorian Charter does not apply to federal government organisations, so it cannot limit the actions of bodies such as the Australian Secret Intelligence Organisation (ASIO), or indeed the NSA itself.

Updated as of 7 February 2015