The Role of International Human Rights Law in Data Privacy Discussions

-- By AmayGupta - 06 Dec 2019

Section I

How does technology impact individuals’ ability to utilize law in order to pursue their own goals and shape their lives? If the importance of one’s autonomy is to forge and pursue one’s aims in life, it is necessary that one has the tools available to be free. If a government disrupts the ability to communicate, organize, move jurisdictions (through the implementation of travel bans), revoke citizenship (widespread among Gulf Countries) rendering one without state protection, these harms do not affect an individual’s control over her information. As demonstrated by the Chinese and Indian governments, these harms affect protestors’ ability to organize and carry out political action. I believe that we should view the harms associated with the loss of informational privacy through government surveillance in terms of the power that others acquire over us as a consequence. Individual freedom is impaired not only when one’s liberty is interfered with, but when one is subject to the government’s control at will. Widespread 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.

Section II

Should we consider the government’s power to invade one’s choices domination of freedom even if mechanisms exist to ensure the person’s ability to participate in checking that power? After all, in many jurisdictions, citizens can “counter-surveil” the state through freedom of information requests, demanding police offers to wear body cameras, and critiquing governments for relying on cyberespionage firms and volunteers in order to be everywhere at once. Some even argue that a balancing of the power gap between the government and the citizenry can be achieved by activists who reciprocate measures of control, such as 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 in 2016, Israel continually asks social media platforms to remove offensive content, and general surveillance of specific individuals (journalists, activists, critic) has led to cruel, inhumane degradation and torture, extrajudicial killings, and enforced disappearances. 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 Nazi Germany, when rule of law became inconvenient, it relied on freikorps, private mercenaries to monitor and curb political opposition. The same violations of human rights are present in modern states that weaponize data collection to influence political outcomes.

Perhaps another mechanism that could address government invasion would be the use of international human rights law, particularly the International Covenant on Civil & Political Rights (ICCPR). After all, 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 almost 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, it is also unclear whether 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.

Even if such mechanisms to control unbridled government surveillance were more apparent, I believe that freedom rights would still be dominated from an international human rights law perspective because individuals would still limit their autonomy by tailoring their behavior to conform to legal surveillance. Even those who limit their online activity can be profiled by governments, who use data collected on friends and family to identify those who “hide.” 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 terrifying efforts to transform the negative right of privacy to a positive right, ones which governments bestow on their own terms. The pursuit of freedom of expression is what is being infringed upon. 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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