Carly Nyst is Head of International Advocacy at Privacy International, a London-based human rights organisation.
The recent revelations of global surveillance practices have prompted a fundamental re-examination of the role and responsibility of States with respect to cross-border surveillance. The patchwork of secret spying programmes and intelligence-sharing agreements implemented by parties to the Five Eyes arrangement (the US, UK, Canada, Australia and New Zealand) constitutes an integrated global surveillance arrangement that covers the majority of the world’s communications.
At the heart of this arrangement are carefully constructed legal frameworks that provide differing levels of protections for internal versus external communications, or those relating to nationals versus non-nationals. These frameworks attempt to circumvent national constitutional or human rights protections governing interferences with the right to privacy of communications that, States purport, apply only to nationals or those within their territorial jurisdiction.
In doing so, the States not only defeat the spirit and purpose of international human rights instruments; they are in direct violation of their obligations under such instruments. Human rights obligations apply to all individuals subject to a State’s jurisdiction (ICCPR, Article 2), including to anyone within the power and effective control of the State, even if they are outside the territory (Human Rights Committee General Comment 31, para 10). It also extends, it is argued here, where a State interferes with the right to privacy of an individual whose communications are intercepted within that State’s territory. In such circumstances, the State owes obligations to that individual regardless of their location.
It is only by understanding State jurisdiction over human rights violations in this way that we can give effect to international human rights obligations in the digital age. Through the concept of “interference-based jurisdiction” introduced here, whereby States owe negative obligations not to interfere with communications that pass through their territorial borders, mass surveillance is cognisable within a human rights framework in a way that provides rights and remedies to affected individuals. Without such a perspective on obligations for violations that properly reflects the nature and scope of Five Eyes surveillance, and the way in which privacy violations occur, States will continue to conduct surveillance in a way that renders human rights obligations meaningless.
The right to privacy of communications
The right to privacy is an internationally recognized right, articulated in Article 17 (1) of the International Covenant on Civil and Political Rights and Article 8 of the European Convention on Human Rights. The European Court of Human Rights has consistently held that the interception of telephone communications, as well as facsimile and e-mail communications content, are covered by notions of “private life” and “correspondence” and thus constitute an interference with Article 8 (See Malone v United Kingdom (1985) 7 EHRR 14 ; Weber v Germany (2008) 46 EHRR SE5 at ; and Kennedy v United Kingdom (2011) 52 EHRR 4 at ).
Importantly, the European Court has found the interception and/or storage of a communication constitutes the violation, and that the “subsequent use of the stored information has no bearing on that finding”, nor does it matter “whether the information gathered on the applicant was sensitive or not or as to whether the applicant had been inconvenienced in any way”.
Therefore, the right to privacy, extending as it does to the privacy of communications, is a relatively unique right in the sense that its realization can occur remotely from the physical location of the individual. That is, when an individual sends a letter, email or a text-message, or makes a phone call, that communication leaves their physical proximity and travels to its destination. In the course of its transmission the communication may pass through multiple other States and, therefore, multiple jurisdictions.
With the advent of the internet and new digital forms of communication, now most digital communications take the fastest and cheapest route to their destination, rather than the most direct. Even when a digital communication is being sent to a recipient within the same country as the sender, it may travel around the world to reach its destination. This shift in communications infrastructure means that communications travel through many more countries, are stored in a variety of countries and are thus vulnerable to interception by multiple intelligence agencies.
In this context, communications can be interfered with within the territory of the intercepting state, and yet have implications for the right to privacy of those outside the intercepting state. In such circumstances, how should we conceptualise the human rights obligations of the intercepting state?
Jurisdiction in the digital era
Traditional conceptions of State human rights obligations focus on a nexus between the territory where the obligation is owed and individual’s connection with that territory (by virtue of nationality, residence or physical location within it). However, with increasing frequency courts are embracing an understanding of the obligations arising under the ICCPR and ECHR as being applicable outside the strict territorial boundaries of the State. (See, notably, R (Al-Skeini and others) v Secretary of State for Defence,  UKHL 26,  3 WLR 33,  3 All ER 685. Anne Peters recently addressed extra-territorial obligations in the context of the right to privacy in her EJIL: Talk! Post here.)
In the particular case of the right to privacy, many violations are not due to extra-territorial acts, but jurisdictional acts with extra-territorial effects. That is, where interference with communications physically occurs in a particular state – the United Kingdom, for example – it can have extra-territorial effects upon those across the globe.
The instances in which jurisdictional acts have extra-territorial effects are infrequent but not without precedent. For example, a person may have property rights in the UK by virtue of owning a property in the territory, but may be temporarily or permanently located outside the UK. In Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v Ireland, addressing the impounding of an airplane owned by the applicant by Irish authorities at Dublin airport, the European Court found that the Irish authorities had brought the applicant company within the territorial jurisdiction of the Irish state regardless of the applicant’s location.
Similarly, Article 6 ECHR fair trial rights have been found to apply during trials in absentia where the individual in question has absconded outside the State’s territory. The European Court of Human Rights has repeatedly upheld the right of defendants to enjoy the protections of Article 6 even when they are absent from their trial and outside the territory of the State.
Towards the right to privacy for non-nationals in Five Eyes States
The current legal frameworks of the Five Eyes States distinguish between the obligations owed to nationals or those within the States’ territories, and non-nationals and those outside (See the US Foreign Intelligence Surveillance Act s1881a(a); UK Regulation of Investigatory Powers Act 2000 s8(4); New Zealand Government Security Bureau Act 2003 s15A; Australian Intelligence Services Act (s9); Canadian National Defence Act s273.64(1)). In doing so, these legal frameworks infringe upon the rights of all individuals within the respective States’ jurisdiction (i.e. anyone whose communications pass through and are interfered with within the territory of that State) to enjoy human rights protections equally and without discrimination.
In human rights law, discrimination constitutes any distinction, exclusion, restriction or preference, or other differential treatment based on any ground, including national or social origin, or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment, or exercise by all persons, on an equal footing, of all rights and freedoms. The Human Rights Committee has deemed nationality a ground of “other status” with respect of article 2(1) of the ICCPR in Gueye and ors v France.
It is both irrational and contrary to the spirit and purpose of international human rights norms to suppose that the privacy of a person’s communications could be accorded different legal weight according to their nationality or residence. An equivalent distinction on the basis of ethnicity or gender would be deemed to be manifestly incompatible with human rights law; why then should States be able to purport to offer varying protections based on an individual’s nationality or location? If an individual within a State’s jurisdiction is de facto or de jure granted lower or diminished human rights protections – or indeed is deprived of such protections – solely on the basis of their nationality or location, this will not only lead to a violation of the right they seek to enjoy, but will amounts to an interference with their right to be free from discrimination.
Individuals have a legitimate expectation that their human rights will be respected not only by the State upon whose territory they stand, but by the State within whose territory their rights are exercised. The current legal frameworks of the Five Eyes States purport to discriminate between the rights and obligations owed to nationals or those physically within their territory, and those outside of it, or non-nationals. Yet the concept of jurisdiction, under human rights law, is not a rigid one. States have interference-based jurisdiction for particular negative human rights obligations when the interference with the right occurs within their territory. The way the global communications infrastructure is built requires that the right to privacy of communications can be exercised globally, and communications can be monitored in a place far from the location of the individual to whom they belong. Accordingly, the States Parties to the Five Eyes arrangement have jurisdiction over – and thus owe obligations to – individuals whose communications they monitor, which jurisdiction is invoked when the State interferes with the communication of an individual, thus infringing upon their right to privacy.