The digital communications revolution has dramatically eased information
sharing in today's environment. Digital communication technologies have an
essential position not just in every person's life, but also in the life of
every state, boosting the capacity of governments, organisations and people to
follow, intercept and gather information. Thus, the technical platforms on which
the world's political, economic and social life increasingly depends today are
not only susceptible to widespread electronic monitoring, but may actually drive
it by reducing financial or practical hurdles to surveillance.
Information on the systematic usage in several nations of such exposure of
digital communication technology to electronic monitoring and interception is
particularly disturbing. As countless examples of overt or covert digital
monitoring throughout the world reveal, governmental surveillance is growing
from an exceptional measure into a hazardous habit.
Mass surveillance technologies are increasingly entering the global marketplace,
increasing the possibility that digital surveillance will spiral out of
government control. Few developed countries in this sense have created
technology that provide access to almost all of the world's internet traffic,
individual phone call records, people' electronic address books and enormous
volumes of other digital information. While such actions are presently going
place with the agreement of governments throughout the world, states may soon
lose their power in this field.
Responding to concerns by Member States and other stakeholders concerning the
harmful impact of surveillance activities on human rights, the General Assembly
enacted resolution 68/167 on the right to privacy in the digital age. In the
resolution, which was approved by 57 Member States, the Assembly stresses that
the same rights an individual enjoys outdoors must also be safeguarded online
and urges for the right to privacy in the context of digital communication to be
recognised and preserved.
It also calls on all States to review their procedures, practises and
legislation relating to the surveillance and interception of communications and
the collection of personal data in order to protect the right to privacy by
ensuring full and effective implementation of all their obligations under
international human rights law.
According to the Universal Declaration of Human Rights and the International
Covenant on Civil and Political Rights, No one should be subjected to arbitrary
interference with his private, family, home or communications, nor to assaults
on his honour and character. Everyone has the right to the protection of the law
against such interference or attacks. Similar clauses are present in other
international instruments human rights treaties.
The right of everyone to privacy, family life, home, communication, or the right
to recognition and respect for dignity, personal integrity or reputation is also
provided for in legislation at the regional and national level. There is
therefore widespread awareness, de jure and de facto, of the essential
importance and enduring worth of the right to privacy and the necessity to
secure its observance.
There is also the opinion that the tracking of electronically transmitted data
can be a necessary and effective action adopted in the legitimate interests of
law enforcement or national security when done out in conformity with the law,
including international human rights legislation.
However, claims of widespread digital monitoring raise issues about the extent
to which such measures conform with international legal norms and if legal
protections in tracking this information ought to be enhanced to prevent against
human rights violations. In particular, monitoring techniques shall not result
in arbitrary or unlawful interference with an individual's privacy, family life,
residence or communications.
Governments should take extraordinary efforts to guarantee that the law is
safeguarded from such meddling. Practice demonstrates that resolving these
challenges needs an assessment of what constitutes an interference with privacy
in the context of digital communications. Defining the meaning of phrases
arbitrary and unlawful; comprehending whose rights are protected under
international human rights law and when.
International human rights law offers a clear and universal framework for the
promotion and protection of the right to privacy, especially in the context of
domestic and extraterritorial monitoring of information flows, interception of
digital communities and collection of personal data. However, the practise of
many states demonstrates a lack of proper national laws and/or enforcement, poor
procedural protections and inefficient monitoring, all of which leads to a lack
of responsibility for arbitrary or unlawful interference with privacy.
In correcting large gaps in the application of the right to privacy, two
conditions need to be taken into account. The first is that more and more
information concerning domestic and extraterritorial monitoring rules and
activities is being discovered. Investigations are underway to gain information
on electronic surveillance and the acquisition and preservation of personal
data, as well as to examine the impact of surveillance on the enjoyment of human
rights. Courts at national and regional levels are evaluating the legality of
electronic surveillance policies and procedures connected to its execution.
Any examination of the conformity of surveillance policies and practises with
international human rights legislation must take into consideration the dynamic
nature of the issue itself. A second related problem is the lack of openness in
government actions linked to surveillance policies, regulations and practises,
which contradicts any efforts to examine their conformity with international
human rights law and to guarantee accountability.
Effectively responding to the issues posed by the right to privacy in the
context of current communication technology will need continuous and coordinated
multi-stakeholder engagement. This approach should entail conversation with all
stakeholders, including Member States, civil society, scientific and
technological societies, entrepreneurs, academics and human rights experts.
As communication technologies continue to grow, the participation of the private
sector is vital in ensuring that the potential of new technologies is exploited
for greater implementation of the human rights embodied in international legal
Given the above-mentioned conditions, there is an obvious and immediate need to
rigorously monitor the conformity of any surveillance policy or practise with
international human rights legislation, particularly the right to privacy, by
implementing adequate safeguards against any violation. As an urgent measure,
States should assess their own domestic laws, policies and practises to
guarantee their complete compliance with international human rights legislation.
Where any gaps are discovered, States should take efforts to overcome them,
including via the construction of a clear, precise, accessible, complete and
non-discriminatory legislative framework. Measures should be taken to establish
a structure and practise of independent monitoring, with a particular focus on
the right of victims to effective recourse.
The promotion and preservation of the right to privacy in the digital era will
encounter a number of key practical obstacles. Building on the early study in
this debate on some of these, there is a need for more discussion and research
on effective defences of the law, procedural protections, effective supervision
An in-depth consideration of these concerns will serve to give further practical
recommendations based on international human rights legislation, the principles
of necessity, proportionality and propriety in respect to surveillance methods;
effective, independent and impartial monitoring; and corrective actions. Further
study will also allow corporations to achieve their human rights commitments,
including due diligence and risk management controls, and to fulfil their
responsibility in delivering appropriate remedies.
- Dr. Y. V. Kiran Kumar, Assistant Professor, GITAM School of Law, GITAM
Deemed to be University, Visakhapatnam.
- Dr. Deepthi Rodda, Research Associate, Damodaram Sanjivayya National Law