The Right to Privacy and the Future of Mass Surveillance.

Abstract

This article considers the feasibility of the adoption by the Council of Europe member states of a multilateral binding treaty, called the Intelligence Codex, aimed at regulating the working methods of state intelligence agencies. The Codex is the result of deep concerns about mass surveillance practices conducted by the United States’ National Security Agency and the United Kingdom Government Communications Headquarters. The article explores the reasons for such a treaty. To that end, it identifies the discriminatory nature of the United States’ and the United Kingdom’s domestic legislation, pursuant to which foreign cyber surveillance programmes are operated, which reinforces the need to broaden the scope of extraterritorial application of the human rights treaties. Furthermore, it demonstrates that US and UK foreign mass surveillance interferes with the right to privacy of communications and cannot be justified under Article 17 ICCPR and Article 8 ECHR. As mass surveillance seems set to continue unabated, the article supports the calls from the Council of Europe to ban cyber espionage and untargeted cyber surveillance. The response to the proposal of a legally binding Intelligence Codex from the 47 Council of Europe governments has been so far muted, however a soft law option may be a viable way forward.