Towards a coherent information policy in intelligence oversight : a comparative approach to emerging trends

Abstract

Individuals are growing more and more concerned about how their data is being handled, both by private parties and public institutions. If the ways in which companies obtain and use people’s data are more or less accessible and the individual is able to oversee them himself by reading the privacy and personal data policy and choosing whether to use or not a certain service, when it comes to governments’ access and handling of data, the individual cannot “opt out” from the system, unless he moves into the wilderness and gives up any technological device which collects data. Given this is not a feasible option for most individuals, it means that people must take other measures to protect their privacy, in the context of a highly technologically-reliant society. One of these measures is acquiring a good understanding of how their personal data is being used by government agencies (and private companies), which are the safeguards put in place, both at national and international level, and how to act when he feels that his privacy has been violated. The data subject should therefore understand the functioning of and trust its domestic oversight system (hence the paramountcy of an effective mechanism) and know which are the steps he can take in order to remedy any violations of his fundamental human rights, such as the right to privacy. Speaking about the link between privacy and technology, the UN Special Rapporteur on the Right to Privacy shared his belief that, “a number of new technologies, especially the Internet, smartphones, big data analytics, wearables, smart energy, smart cities etc. render individuals and communities more vulnerable to surveillance by the states within which they live as well as by the intelligence agencies of hostile states. This is one of the most significant risks to privacy and other human rights such as freedom of expression, freedom of association and freedom of religion that we have witnessed for decades. The individual and, especially, the cumulative effect of these technologies is to give the state the ability to closely profile and monitor the behaviour of its citizens in ways and to an extent hitherto unprecedented. The net result is that these technologies may be used to undermine social values such as democracy as well as individual freedoms. Democracy may be an imperfect mechanism but it is historically the one which has provided the best eco-system possible within which human rights are nurtured.” Hence a test regarding the legality, proportionality and necessity of any measure which could interfere with individuals’ rights and freedoms is mandatory in any democratic society. In the case where one's own Government is carrying out surveillance, one must depend on safeguards provided by domestic law and European-wide safeguards, including Convention 108, the European Convention for the Protection of Human Rights and the European Court of Human Rights for all Council of Europe Member States, as well as the Police Directive for EU Member States. When a foreign Government is the one carrying out the surveillance, then an individual’s safeguards are limited to a) what the domestic law of that foreign government (which is carrying out the surveillance operation) provides as safeguards, regardless of the individual’s physical location, and b) what international law provides as safeguards (if any).