Bearing in mind the three models of extraterritorial application that I outlined in my previous post, the only model which provides an easy, clear answer is the third one. If the negative obligation to respect the right to privacy is territorially unlimited, then any interference with this right in any place in the world would implicate the ICCPR or the ECHR. This is not to say that such interferences, whether through a mass surveillance program or a targeted one, would necessarily be illegal. Rather, any such interference would need to be substantively justified within the analytical framework of human rights treaties (i.e. is the interference prescribed by law; does it serve a legitimate aim; is it proportionate to that aim). No threshold question of jurisdiction would arise, and just like with purely internal surveillance the analysis would need to be one on the merits. But again, this is also not to say that on the merits internal and external surveillance would need to be treated equally in every respect – more on this in my next, and final, post.
The third model provides a clear answer on the threshold question of applicability, but also one that is very broad and immediately leads to examination of the merits which carries with it its own uncertainties. This is precisely why the third model may not be appealing to those actors, be they governments, secret services, courts, or what have you, who would want to avoid the difficulties of a merits analysis or the constrains of human rights treaties altogether.
I will thus proceed to situate the following discussion within the confined of the more established spatial and personal models. But as soon as I do so, we will see how we run into uncertainty, complexity, and potential for arbitrariness. This is at least partly due to the fact that technological advances in obtaining information have rendered the exercise of manual, physical power over individuals unnecessary or less necessary. While privacy law in the information era frequently developed by analogy to old-school physical searches or interferences, be it in domestic systems (say under the Fourth Amendment to the US Constitution) or in international human rights law, there comes a point at which such analogies are no longer feasible or are outright misleading.
But such analogies can be a useful starting point. I will now outline some scenarios of possible interferences with privacy through searches, interception, or surveillance, starting with the more physical and ending with the most virtual. Under existing case law all of these actions by state agents against individuals could in principle count as interferences with their privacy rights under either the ECHR or the ICCPR if these actions were to occur on the state’s own territory. The problem I want to get at is jurisdiction, i.e. whether human rights treaties would apply in the first place if the state engaged in such conduct extraterritorially under either the spatial or the personal model, and whether distinctions should be made in terms of jurisdiction between the physical and the virtual methods of gathering information.