What Legal Right to Privacy Do We Have?

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tomipioneers

6 min readApr 10, 2024

You’re probably used to my many discussions on the threats to our privacy by now. It is one of the founding ideas behind tomi, so of course this is also a topic that I hold close to my heart. But what if we think beyond the countless times our privacy and data has been used and abused, to instead look at what actual or legal right to privacy we have. If we even have any…

Privacy Rights in Theory vs. Practice

Privacy is actually recognized as a fundamental human right according to Article 12 of the Universal Declaration of Human Rights (UDHR), which asserts, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” This sentiment is mirrored in various international agreements, such as Article 17 of the International Covenant on Civil and Political Rights (ICCPR), further emphasizing privacy’s global stature alongside rights to freedom, education, and expression.

This all sounds great, but despite this widespread recognition, the enforcement of privacy rights varies significantly across the globe. The absence of a unified global authority to enforce these rights leaves room for nations to interpret or ignore them according to their own policies or convenience. This challenge isn’t confined to authoritarian regimes, which might even be expected to flout such rights. Even democracies, often viewed as protectors of personal freedoms, can exhibit ambivalent or even contradictory stances towards privacy.

Navigating Privacy in the Age of Mass Monitoring

For instance, revelations about mass surveillance programs in countries like the United States have sparked global debates about the balance between national security and individual privacy rights. Amnesty International really puts this into perspective by stating that ”most individuals are likely unwittingly caught in the net of these massive monitoring operations.” Emphasizing that this is not just a one-off occurrence directed at criminals, this is systematic surveillance that most likely targets all of us.

Legally, surveillance is justified only when it is necessary, targeted, and based on concrete evidence of wrongdoing, approved by a fully independent authority. However, mass surveillance — as the indiscriminate monitoring of large groups’ internet and phone communications without specific evidence — directly contradicts these criteria. Despite the legal requirement for surveillance to be targeted and based on solid evidence, programs like Prism, Upstream, and Tempora reveal a far-reaching scope of data collection that often occurs without the necessary judicial oversight.

This situation introduces a stark contradiction: while countries can enact laws allowing mass surveillance, doing so directly conflicts with the international agreements they’ve pledged to uphold. The ‘Five Eyes’ intelligence-sharing alliance, comprising Australia, Canada, New Zealand, the UK, and the USA, epitomizes this tension, with agencies such as the NSA and GCHQ at the forefront of collecting and analyzing vast amounts of data from citizens worldwide, without direct links to wrongdoing.

The implications for human rights are profound. Mass surveillance poses a significant violation of privacy rights and also suppresses free speech, as the knowledge of being watched can inhibit open communication. Given the extensive capabilities of the NSA and GCHQ to store, search, and analyze data — extending to nearly every country on earth — the reality is stark: if you use the internet or a mobile phone, the likelihood of being watched is high, challenging the notion of personal privacy in our digital age.

Whistleblowers: Exposing the Surveillance Shadows

Perhaps the most unsettling aspect of mass surveillance is how hard it is for us to definitively prove when it’s being used against us, a major hurdle in holding authorities accountable for their overreach. However, there are moments when they do slip up, offering us a peak behind the curtain — thanks to whistleblowers who dare to expose the extent of these privacy invasions.

Edward Snowden’s revelations in 2013 unveiled the NSA’s extensive surveillance operations, including programs like PRISM, which collected data from millions of people through major tech companies, and the bulk collection of phone records of U.S. citizens. Similarly, Julian Assange and WikiLeaks, particularly from 2010 onwards, have played a pivotal role in bringing to light various forms of government surveillance and operations, most notably through the publication of documents that have shed light on the U.S. government’s data collection practices and the global surveillance industry.

What scares me the most about these revelations is, firstly, their age — it’s been a long time since we’ve had a major whistleblower come forward to expose something of this magnitude. It’s not that these assaults on our privacy have ceased; rather, with the further development of the Data and Information Age, they have likely only intensified. Secondly, this probably indicates that governmental institutions, such as the US military, have tightened their security measures, making it much harder for potential whistleblowers to extract and disclose information.

The Pegasus Project: Unmasking Global Surveillance

Yet, a notable exception emerged in 2021 when the Forbidden Stories consortium and its partners exposed The Pegasus Project, revealing that the Israeli security firm NSO group had been selling sophisticated surveillance technology to regimes with dubious human rights records.

Sure, it was never sold as, “this great tool that you can use to spy on your own people”. It was sold as a security tool, being able to interfere with terrorism and threats towards the state. The problem with doing business with authoritarian regimes is that many of them deem critique as a threat to their state. They do not allow opinions to be freely shared, so what happened? Pegasus was used by them to target political dissidents, journalists, human rights defenders, and lawyers, not just within their own borders but globally. The tool even targeted high-profile figures like French President Emmanuel Macron, making it clear that Pegasus wasn’t just after the “bin Ladens” of the world. Instead, it became a tool for authoritarian regimes to clamp down on dissent, far and wide.

Returning to the legality and human rights agreements, one might ask: What substantial changes have occurred post Pegasus revelation? On the surface, there have been motions towards accountability and control: the European Parliament has moved to implement stricter regulations on spyware; Apple launched a legal case against the NSO Group; and the U.S. Commerce Department blacklisted NSO group, citing national security risks. However, tangible victories for the victims of the Pegasus scandal remain few, underscoring a grim reality where technological advances in surveillance continue to outpace the mechanisms designed to safeguard privacy and human rights.

The Reality of Privacy Rights

So, where does this leave us regarding the legal rights we supposedly have to our privacy? Despite the clear acknowledgment of privacy as a fundamental human right by international declarations and agreements, the stark reality suggests a disheartening answer: our ability to defend this right against things such as mass surveillance remains alarmingly limited. While we might catch glimpses of the extent of surveillance through the occasional slip-up or whistleblower revelation, these are but fleeting moments of transparency in an otherwise opaque realm of state surveillance.

The heart of the issue is that there’s no overarching, global authority effectively controlling government’s surveillance powers. States themselves are the arbiters of their actions, often prioritizing national security interests over individual privacy rights. This predicament is exacerbated by the revelations that legal challenges and international scrutiny, while persistent, have yet to yield significant constraints on programs like Prism, Upstream, and Tempora.

Actions like those by German authorities, passing resolutions concerning U.S. and UK government surveillance programs, indicate an attempt at international oversight, yet the effectiveness of these measures remains to be seen. Moreover, the ever-expanding scale of surveillance under laws like Section 702 (which authorizes the collection of foreign intelligence from non-U.S. persons outside the U.S. without a warrant), coupled with judicial reluctance to intervene, illustrates a grim picture: despite global recognition of privacy’s importance, the steps taken by states to protect this right are, at best, nominal.

In essence, while privacy is proclaimed as a cornerstone of human rights, the mechanisms to safeguard it against the reach of state surveillance are perpetually playing catch-up. This leaves us in a cycle of infringement and exposé, with little substantial progress in sight. The ongoing efforts by civil liberties organizations to challenge these practices in court, alongside international actions such as those by Germany, underscore the profound challenges faced in safeguarding privacy against the growing reach of state surveillance.

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