Published in July 2018.
This module is a resource for lecturers
International legal framework
The importance, as well as the related rule of law challenges, of the right to privacy in a counter-terrorism context has been succinctly captured by the United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism in the following terms:
In addition to constituting a right in itself, privacy serves as a basis for other rights and without which the other rights would not be effectively enjoyed. Privacy is necessary to create zones to allow individuals and groups to be able to think and develop ideas and relationships. Other rights such as freedom of expression, association, and movement all require privacy to be able to develop effectively. Surveillance has also resulted in miscarriages of justice, leading to failures of due process and wrongful arrest (General Assembly, Human Rights Council report 13/37, para. 33).
Such sentiments are reflected also in United Nations General Assembly outputs. In 2013, the Assembly unanimously adopted Resolution 68/167 entitled Right to privacy in the digital age. The preamble of the resolution specifies that "unlawful or arbitrary surveillance and/or interception of communications, as well as unlawful or arbitrary collection of personal data, as highly intrusive acts, violate the rights to privacy and freedom of expression and may contradict the tenets of a democratic society". It further notes "that while concerns about public security may justify the gathering and protection of certain sensitive information" States must ensure that they fully comply with their existing obligations under international human rights law.
In addition to upholding the rule of law, one significant motivational reason for States to abide by their own constitutional guarantees and international obligations regarding privacy is to ensure that they do not inadvertently undermine their own parallel terrorism prevention efforts. For instance, any evidence against a suspected terrorist which has been secured through unlawful methods and interferences with a person's privacy is likely to be excluded during any subsequent criminal proceedings and, in some instances, may even jeopardize trial proceedings if the defendant is unable to have a fair trial. (See Module 11).
The right to privacy is enshrined in international and regional human rights treaties. The starting point here is article 17(1) of the International Covenant on Civil and Political Rights (ICCPR) which states that "[n]o one shall be subjected to arbitrary or unlawful interference with his [or her] privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation"; and moreover, that "[e]veryone has the right to the protection of the law against such interference or attacks." (Article 17(2)).
In terms of its meaning, privacy has been defined as:
[T]he presumption that individuals should have an area of personal autonomous development, interaction and liberty free from State intervention and excessive unsolicited intrusion by other uninvited individuals … The duty to respect the privacy and security of communications implies that individuals have the right to share information and ideas with one another without interference by the State (or a private actor), secure in the knowledge that their communications will reach and be read by the intended recipients alone. The right to privacy also encompasses the right of individuals to know who holds information about them and how that information is used (General Assembly report 69/397, para. 28).
Privacy as a derogable right
The right to privacy is not one of the non-derogable rights specified in article 4(2) ICCPR. That said, the United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism has observed the following with respect to derogations:*
Article 17 ICCPR: "Derogations can be made only during a state of emergency threatening the life of the nation and they are subject to several conditions…. fewer than 10 States parties have introduced a state of emergency with reference to acts, or the threat of, terrorism. Four of them have in that context sought to derogate also from article 17 of the Covenant… However, the notifications in question have remained rather generic, instead of specifying, in line with the requirements under article 4, what concrete measures derogating from article 17 are necessary within the exigencies of the situation. Overall, there is not a single case of a State seeking to derogate from article 17 with reference to terrorism that would demonstrate compliance with all requirements of article 4."
* United Nations, General Assembly, Human Rights Council (2009). (2009). Report of the United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin . 28 December. A/HRC/13/37. S. III "The right to privacy", para. 4.
The State is obligated to adopt legislative and other measures to ensure that government organs, and private entities do not unlawfully or arbitrarily interfere with the right to privacy, and that this right is protected. For example, as the Human Rights Committee observed in their General Comment No. 31 on the positive obligations of States parties to ICCPR, "privacy-related guarantees of article 17 must be protected by law" (General Comment No. 31 CCPR/C/21/Rev.1/Add.13, para. 8).
Interference with privacy is lawful if:
- it is prescribed by law;
- it has a legitimate aim;
- it is reasonable;
- it is necessary;
- there is proportionality between the aim pursued and the interference with the right; and
- the interference is not incompatible with the provisions and aims of ICCPR.
Guidance has been given by the Human Rights Committee regarding the interpretation of article 17 ICCPR rights and accompanying obligations, including these underpinning principles:
- Prescribed by law: The laws promulgated to limit the enjoyment of the right to privacy should be 'accessible'. This means that the government should make the legislation publicly available and individuals should be able to access the legislation. The language of the legislation should be sufficiently precise to enable individuals to understand how it applies to them. The legislation should: (1) specify in detail in what circumstances the government authorities may interfere with the right to privacy; (2) what categories of persons are covered by the law; (3) what procedure the government agent should use in order for the gathering of information to be authorized; (4) what limitations are placed on the duration of the surveillance; and (5) what procedures regulates the use and storage of collected data (Human Rights Committee concluding observations CCPR /C/USA/CO/4, para. 22).
- Legitimate aim: The Human Rights Committee in its General Comment No. 16 explains that because individuals necessarily interact with one another in society "the protection of privacy is necessarily relative" (HRI/GEN/1/Rev.1, para. 7). Then, in General Comment No. 27, the Committee further stipulates that legitimate aims include the protection of national security, public order ( ordre public), public health or morals, and the rights and freedoms of others (CCPR/C/21/Rev.1/Add.9). A key concern, however, which has been expressed by the United Nations Special Rapporteur on freedom of expression remains the risk that the undefined and broad concept of national security may be misused including in relation to intelligence gathering techniques (General Assembly, Human Rights Council report 23/40, para. 58) (See further Module 13). Therefore, States should be specific regarding what goals they are trying to achieve. It has been suggested that "the prevention, suppression and investigation of acts of terrorism clearly amount to a legitimate aim for the purposes of article 17" (General Assembly report 69/397, para. 33).
- Reasonableness: Arbitrary interference with the right to privacy is unlawful. In order not to be arbitrary, the interference should be "reasonable in the particular circumstances" (Human Rights Committee General Comment No. 16 HRI/GEN/1/Rev.1, para. 4). The interference is reasonable when it is a necessary and proportionate measure (Human Rights Committee views CCPR/C/50/D/488/1992, para. 8.3).
- Necessity: The interference should be necessary to protect the invoked legitimate aim (Human Rights Committee General Comment No. 27 CCPR/C/21/Rev.1/Add.9, para. 11-16).
- Proportionality:The Human Rights Committee in its General Comment No. 27 clarified that the interference is proportionate when it is the least intrusive measure available (CCPR/C/21/Rev.1/Add.9, para. 11-16). The measure should have "some chance of achieving the desired goal" (General Assembly, Human Rights Council report 27/37, para. 23).
- Compatibility with the aims and provisions of ICCPR: The interference with the right to privacy should not undermine the State's ability to respect and protect other rights enshrined in ICCPR. Neither should the interference be incompatible with the aims of ICCPR (Human Rights Committee General Comment No. 16 HRI/GEN/1/Rev.1, para. 3).
One further observation made here is that generally it will be insufficient for States to solely comply with such principles for any interferences with personal privacy to be lawful; normally effective judicial oversight mechanisms must also be in place.