National Security, Surveillance and Human Rights

Privacy and Security

Article Snapshot

Author(s)

Katia Bouslimani and Theodore Christakis

Source

Oxford Handbook on the International Law of Global Security, R. Geiss and N. Melzer, eds., Oxford University Press, 2020 (forthcoming)

Summary

The European Court of Human Rights (ECtHR) often decides cases involving a conflict between human rights and surveillance systems intended to protect national security. Surveillance must be necessary and lawful.

Policy Relevance

The ECtHR has approved some mass surveillance programs. The ECtHR will soon consider key cases involving facial recognition technology.

Main Points

  • Edward Snowden revealed mass electronic surveillance programs run by agencies in the United States, France, Germany, and Britain; national security is a legitimate and essential aim of any State, but pursuit of this goal easily leads to abuses of human rights.
     
  • The ECtHR often analyzes the conflict between human rights and national surveillance programs; since 2001, the ECtHR has ruled that the surveillance laws in Hungary, Russia, Turkey, and other nations violate human rights law.
     
  • The European Convention of Human Rights (ECHR) requires that surveillance be used to pursue legitimate aims.
     
    • The requirement is interpreted broadly.
       
    • Mass surveillance operations (such as those in which a large volume of data is analyzed to detect potential terrorist threats) are permitted.
       
  • The ECHR requires that surveillance be necessary to a democratic society; in some cases, the EctHR has ruled that the surveillance must be “strictly necessary,” but gives the State more leeway in other cases.
     
  • The ECHR requires that surveillance be conducted in accordance with legal safeguards and recognized procedures; for example, the law must clearly set out the categories of people to be monitored and limit the duration of surveillance.
     
  • Authorities are required to produce grounds for “reasonable suspicion” when targeting an individual for surveillance; logically, authorities cannot show “reasonable suspicion” to justify mass surveillance, but the safeguard should be applied in later stages of the investigation.
     
  • Review of proposed surveillance orders by a court or independent agency (ex ante judicial review) is a key safeguard against abuse; the ECtHR gives stable democratic nations more leeway in cases involving this safeguard.
     
  • The ECtHR will soon hear a new generation of cases involving sophisticated technologies such as facial recognition systems and biometric data.
     

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