As innovations in technology increase global communications and electronic surveillance techniques, many believe that governments need to aggressively protect online privacy while simultaneously upholding international human rights standards, or otherwise risk severely limiting freedom of speech. UN Special Rapporteur Frank La Rue urges the need for more comprehensive laws regulating what constitutes necessary and legitimate surveillance. Similarly, the United Nations Human Rights Council (UNHRC) also advocates that all countries take measures to protect the rights of digital privacy, stating that, “insufficient national legal frameworks create a breeding ground for arbitrary and unlawful violations of the right to privacy in communications and, therefore, also threaten the protection of the right to freedom of opinion and expression.” While international law establishes a general right to privacy, some argue that a more secure legal framework needs to be created in line with human rights standards in order to protect that right.
The Universal Declaration of Human Rights (UDHR) establishes privacy as a fundamental human right in Article 12, requiring that “[n]o one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.” Furthermore, The Covenant on Civil and Political Rights (ICCPR, art. 17), the Convention on the Rights of Child (art. 16) and the International Convention on Protection of All Migrant Workers and Members of Their Families (art. 14) all address privacy as a human right. In fact, nearly every country in the world recognizes the right to privacy within their Constitution. Despite the many international treaties confirming a right to privacy, privacy still has many definitions and touches on many adjacent rights. However, the right to privacy is often understood as the right to autonomous development free from state intervention, as well as the ability of individuals to determine who holds information about them and how that information is used.
Relevant human rights documents, such as the UDHR and ICCPR, were drafted before the Internet emerged and therefore prior to a digital privacy concept. Today, however, digital privacy is recognized as an important human right, particularly within the online world, because so many people store and transmit private information through this medium. In fact, many argue that online privacy has become one of the most important human rights issues of the modern age. UNHRC Ambassador Eileen Chamberlain Donahoe has said that, “human rights in the [online] world are as real as human rights in the off-line world.” However, despite the multiplicity of privacy laws, Special Rapporteur La Rue suggests, “the specific content of [the right to privacy] was not fully developed by international human rights protection mechanisms at the time of its inclusion” in the human rights documents.
New developments in high-speed networks, mass media, and advance processing systems allow governments, in pursuit of “national security,” to access information on individuals to a far greater capacity than the average user can even understand. “As our lives become more digitized, unchecked surveillance can corrode everyone’s rights and the rule of law,” says Cynthia Wong, Senior Internet Researcher at Human Rights Watch.
The European Union has enacted a unique directive, which provides citizens with a wide range of protections for their data. The “Telecommunications Directive” enforces specific protections that cover all digital networks from phones to television, setting a baseline for data protection law throughout the EU. All data collection requires “explicit and unambiguous” consent of the user under the Directive. Similarly, Special Rapporteur La Rue suggests that the UN Human Rights Committee (HRC) consider issuing a new General Comment to replace the 1988 General Comment No. 16, a change that would further address the right to privacy in a technically advanced age. New measures, argues Mr. La Rue, are needed to develop and protect digital privacy because the current lack of specific language within the treaties and conventions regarding digital privacy pose a threat to human rights in the online world.
As electronic commerce and mass media continue to grow, and threats to national security remain prevalent, comprehensive laws addressing digital privacy are high ranking among the pressing concerns of the United Nations. La Rue argues that, “without adequate legislation . . . to ensure privacy . . . journalists, human rights defenders and whistleblowers, for example, cannot be assured that their communications will not be subject to [s]tates’ scrutiny.” In order to safeguard freedom of speech, as well as legitimate privacy concerns, La Rue believes that individuals should be notified when they are subjected to communications interferences, and that legislation should stipulate that supervision must be used only in exceptional circumstances under the supervision of a judicial authority. In today’s online world, digital privacy rights may need to be more comprehensively protected in order to meet international human rights standards guaranteed to individual privacy and freedom of speech.