The Role of International Human Rights Law in Data Privacy Discussions

-- By AmayGupta - 06 Dec 2019 (updated 01 Feb 2020)

Introduction

Society balance the efficient functioning of governments with allowing individuals to live autonomously. When governments qualify their citizens’ autonomy through disrupting the ability to communicate, organize, move jurisdictions, and revoke citizenship, these harms may affect an individual’s awareness over how her information is being used. As demonstrated by the Chinese and Indian governments, some government checks involving surveillance have affected protestors’ ability to organize and carry out political action. When the Chinese government identifies protestors through reverse image searches, individuals do not have a choice over whether the existence of their face should be used to identify them. I believe that individual freedom is most impaired when one is subject to the government’s control at will. Enabled by technologies such as widespread facial recognition, government interference with the freedoms of activists has implications for our society as a whole – not only is freedom abridged for particular activists, but also the ability to become an activist, which is necessary to ensure that citizens can check government powers. In this paper, I argue that the problem should be framed in an international law framework rather than a domestic one. While I cannot purport to have a one size solution to the issue of digital privacy, I explain why I believe that the use of international human rights law should be incorporated in discussing solutions to this problem and where we can make improvements to current international law.

The Role of Human Rights Law

Human rights law should be incorporated into solutions to mass surveillance because governments often violate human rights norms in order to prevent citizens from using counter-surveillance. In many jurisdictions, domestic law allows citizens to “counter-surveil” the state through freedom of information requests and demanding that police offers wear body cameras. Some even argue that the citizenry can achieve a balance of the power gap between the government and the citizenry through reciprocating government measures of control, including social media manipulation through hashtag hijacking or disruption through DDoS? attacks. However, I believe that these countermeasures are inadequate in the face of flagrant human rights violations. For example, Turkey shut down WhatsApp? , Twitter, and Facebook during protests 2016. Israel continually asks social media platforms to remove offensive content. General surveillance of specific individuals, including journalists and activists, has led to cruel, inhumane degradation and torture, extrajudicial killings, and enforced disappearances. Moreover, when governments contract with countersurveillance companies and other private actors, this population surveillance arguably poses an even greater threat to human freedom if it allows governments to bypass their legal authority. In theory, when governments rely on companies to surveil their citizens, governments make it more difficult to establish that they were the primary perpetrators of improper surveillance. This is nothing new. For example, in Nazi Germany, when rule of law became inconvenient, it relied on freikorps, private mercenaries to monitor and curb political opposition. Similarly, when politicians use private companies like Cambridge Analytica to influence political outcomes, stripping individuals of independent choice, laws that target government action may encourage governments to pawn off responsibility to these companies. Human rights law, which focus on individual rights rather than government action, allow individuals to claim violations against any actor, including private companies, not just governments. If we frame the problem of surveillance as one of individual violations rather than violations of government responsibilities to their citizens, we can hold more actors accountable.

Problems with Current Human Rights Approaches

While current international law mechanisms support this theory, they may not go far enough because international law often allows violations for “national security.” The Human Rights Commission recently adopted Resolution 34/7, “The right to privacy in the digital age,” which requests the UN High Commissioner for Human Rights to adopt standards and best practices regarding the promotion and protection of the right to data (including meta-data) privacy in the digital age, including the responsibility of business enterprises. However, I believe that this resolution practically ignores the language in Article 19 of the ICCPR, which states that freedom of expression may be subject to certain restrictions provided by law, which are necessary to fulfill certain objectives such as the rights of others, national security, or public health or morals. Notwithstanding the fact that the ICCPR emphasizes state sovereignty, international law like the ICCPR explicitly sanctions the use of surveillance if for “national security” reasons. While restrictions on the right to freedom of expression must be strictly and narrowly tailored and may not put in jeopardy the right itself, the HRC’s new resolution only provides that “individuals whose right to privacy has been violated by unlawful or arbitrary surveillance” should be provided with “access to an effective remedy, consistent with international human rights obligation.” I simply cannot see how violations can be remedied under the new resolution if a state conducts extrajudicial killings or conducts enforced disappearances. If limitations on freedom of expression are capable of being explained away by valid reasons, international laws should consider more of a strict liability standard. Moreover, the practical limitations of bringing suits (with potential resolutions years after violations have already occurred – for example, Hong Kong’s mask ban in violation of the ICCPR will not be remedied soon) and reservations from the ICCPR limit the efficacy of international laws aimed to uphold civil free expression rights.

Why Improving Current Law Makes Sense

While cultural relativism and country-specific norms should be taken into account when it comes to assessing the role of privacy in society, I do believe that states have obligations to allow individuals to effectively communicate messages. Classifying the right to keep data private as a fundamental civil and political right makes sense because unlike economic and social rights, which are resource contingent, freedom of expression is absolute and can be implemented by every citizen towards one another (a negative rights conception with no duty bearers). When individuals cannot pursue free expression while fighting for these rights, their liberty interests, which have zero cost (although governments may disagree), are infringed. Lawmaking bodies should realize that recent infringements on the liberty of freedom of expression are plainly efforts to transform the negative right of privacy to a positive right, ones which governments bestow on their own terms. Because the ability to express thought is being infringed, there should be a stronger push to engage the citizenry to resist government abuse. While data transparency is not a new idea, I do believe that discussions related to data privacy should shift from those that discuss privacy in a vacuum from human freedom and democratic institutions to ones that incorporate the canon of international law to monitor abuse.

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