Foreign Surveillance and Human Rights: Introduction

The past few weeks have seen increasing discussions of how human rights treaties might apply to mass electronic surveillance programs as run e.g. by the NSA and GCHQ or the agencies of the other ‘Five Eyes’ countries. Indeed, the already is or soon will be pending litigation challenging the compatibility of these programs with privacy guarantees under the relevant human rights treaties or under domestic constitutional law. Some of these cases are likely to proceed to an examination of the merits, particularly in Europe, where standing, state secrets and political question doctrines are either non-existent or are not as onerous for applicants to overcome as they are in the United States.

Similarly, the UN General Assembly is currently considering a proposed joint German-Brazilian resolution that would affirm the relevance of the right to privacy in the context of mass electronic surveillance (reports here and here). The draft resolution directly relies on Article 17 ICCPR, under which ‘[n]o 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.’ The United States, on the other hand, is working hard to water down the text of the resolution, and is particularly anxious for the resolution to avoid affirming that the ICCPR applies extraterritorially. Apparently the US has actually managed to do so, but we will see what the final outcome will be.

This is the introduction to a series of posts on the application of human rights treaties to foreign surveillance. The main focus of the series is on the threshold question of whether human rights treaties would apply at all to extraterritorial interferences with privacy. The debate has a number of priors, so readers will forgive me (and be warned of) the number and length of the posts. The posts will go live during the course of the week.

• Part 1: Do Foreigners Deserve Privacy? will look at whether citizenship should be the normative basis for fundamental rights, including the right to privacy.
• Part 2: Interpreting the ICCPR will compare the jurisdiction clauses of the ECHR and the ICCPR, and critically evaluate the US position on the extraterritorial application of the ICCPR.
• Part 3: Models of Extraterritorial Application will examine the main strands of the case law of international human rights bodies, which conceptualize jurisdiction in human rights treaties as either effective overall control of territories or areas or as authority and control over individuals.
• Part 4: Do Human Rights Treaties Apply to Extraterritorial Interferences with Privacy? will apply the different models of jurisdiction to a number of possible factual scenarios of extraterritorial surveillance.
• Part 5: The Substance of an Extraterritorial Right to Privacy will look at what the right to privacy might substantively entail in the extraterritorial context, if it is indeed found to apply.

This series builds upon our previous coverage of these issues in two posts by Anne Peters (here and here) and last week’s post by Carly Nast of Privacy International. I will be updating the links to each post in the series as it goes live.