Privacy in the 21st Century Studies in Intercultural Human Rights Editor-in-Chief Siegfried Wiessner St. Thomas University Board of Editors W. Michael Reisman, Yale University • Mahnoush H. Arsanjani, United Nations • Nora Demleitner, Hofstra University • Christof Heyns, University of Pretoria • Eckart Klein, University of Potsdam • Kalliopi Koufa, University of Thessaloniki • Makau Mutua, State University of New York at Buff alo • Martin Nettesheim, University of Tübingen; University of California at Berkeley • Thomas Oppermann, University 0f Tübingen • Roza Pati, St. Thomas University • Herbert Petzold, Former Registrar, European Court of Human Rights • Martin Scheinin, European University Institute, Florence VOLUME 5 This series off ers pathbreaking studies in the dynamic fi eld of intercultural hu- man rights. Its primary aim is to publish volumes which off er interdisciplinary analysis of global societal problems, review past legal responses, and develop solutions which maximize access by all to the realization of universal human as- pirations. Other original studies in the fi eld of human rights are also considered for inclusion. The titles published in this series are listed at Brill.com/sihr Privacy in the 21st Century By Alexandra Rengel LEIDEN • BOSTON 2013 Library of Congress Cataloging-in-Publication Data Rengel, Alexandra, author. Privacy in the 21st century / By Alexandra Rengel. p. cm. -- (Studies in intercultural human rights) Includes index. ISBN 978-90-04-19112-9 (hardback : alk. paper) -- ISBN 978-90-04-19219-5 (e-book) 1. Privacy, Right of. 2. International law. I. Title. II. Title: Privacy in the twenty-first century. K3263.R46 2013 342.08’58--dc23 2013037396 issn 1876-9861 isbn 978-90-04-19112-9 (hardback) isbn 978-90-04-19219-5 (e-book) Copyright 2013 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Global Oriental, Hotei Publishing, idc Publishers and Martinus Nijhoff Publishers. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper. Table of Contents Foreword vii Acknowledgements xi Introduction 1 Chapter 1 Fundamental Rights 9 I. The Philosophical Origins of Human Rights Law 9 A. Natural Law 10 B. Positive Law 15 II. The Development of Human Rights Law from Natural and Positive Law Principles 18 Chapter 2 What Is Privacy? 27 I. Defi ning Privacy, Its Origins and Its Importance 27 II. The Concept of Privacy 32 III. The Right to Privacy: An Overview 34 Chapter 3 Threats to Privacy in Modern Times 41 I. New Technologies Aff ecting Privacy 41 A. Identity Cards 43 B. Biometrics 47 C. Communications and Surveillance 51 1. Video Surveillance and CCTV 55 2. Unmanned Aerial Systems (Drones) 58 3. Internet Surveillance 60 4. Workplace Surveillance 62 5. International Surveillance 64 6. Global Positioning System (GPS) 66 7. Radio Frequency Identifi cation (RFID) 68 D. Social Networks 72 vi Table of Contents Chapter 4 The General Right to Privacy as a Norm of International Law 77 I. Treaties as a Source of International Law 79 A. Treaties and the General Right to Privacy 80 II. Customary International Law as a Source of International Law 88 A. Customary International Law and the General Right to Privacy 97 Chapter 5 Salient Issues: The Right to Privacy in Specifi c Contexts 109 I. Search and Seizure 109 A. International Law and Jurisprudence 109 B. State Practice 117 II. Intimate Conduct 131 A. International Law and Jurisprudence 131 B. State Practice 138 III. Data Protection 145 A. International Law and Jurisprudence 145 B. State Practice 151 Chapter 6 Privacy in the Age of Terrorism 165 I. The Exchange of Privacy for Security 165 II. The Backlash: Civil Liberties Reconsidered and a Reclaiming of the Right to Privacy 179 Chapter 7 Appraisal and Recommendations 189 I. Balancing The Right To Privacy Against Other Societal Interests 189 II. The Eff ect of Globalization on Technology 190 III. Technology, Knowledge, and Privacy by Design 192 IV. The Future of Privacy 196 Conclusion 199 Appendix Privacy Protections in the Constitutions of Countries 205 Index 257 Foreword It is always a delight when a student surpasses her professor, and so it is for me. For more than 25 years I taught an advanced level seminar on Rights of Privacy. Alexandra Rengel was one of my students. It was a rare course; one of about fi fteen in the entire United States, and I quit teaching it soon after she gradu- ated. Privacy rights were rapidly disappearing, and I was tired of depressing my American students. Fortunately, Ms. Rengel was not tired, and in this book has redirected atten- tion to privacy as an international right. As a provincial American, I had come to view privacy as the incredible shrinking right, withering under unremitting assaults from surveillance technologies and the agencies and corporations that employ them. For my former student, however, rights of privacy are not just casu- alties of technology and bureaucracy; they are fundamental attributes of person- hood. So long as people value autonomy and dignity, privacy rights can never be extinguished. Th is is an ambitious book, not just because of the inherent diffi culty of bring- ing intellectual order to the disparate assertions we associate with privacy, but because of the author’s global reach. Ms. Rengel takes her readers on an interna- tional grand tour, starting with the human need for privacy, exploring its philo- sophical and legal underpinnings, and then striving to bring order to a tangle of national statutes, international treaties, and customary and positive legal thought. For people like me, who came of age before computers, the Internet, interna- tional investigations, and transnational terrorism, privacy once seemed compar- atively simple. Th e “right to be left alone” was largely a default condition, because there were real limits on what governments and corporations could investigate, record, share, or retrieve. No longer. Ms. Rengel writes for a “brave new world” in which computers function like giant vacuum cleaners, sucking up mountains of personal information, some of it erroneous, and shipping it off , at lightning speed, through the fi ber optic equivalents of the Great Alaska Pipeline to remote locations, where it can never be corrected or purged in a systematic or reliable fashion. Th is threat to privacy is not just from secret government agencies, but from anyone with curiosity and an Internet connection, anywhere in the world. viii Christopher H. Pyle In the old days, information was collected by law enforcement and intelligence agencies after an individual became target of curiosity, not before. Th at’s what the concept of “probable cause” meant, when judicial permission for searches was required. Now the U.S. National Security Agency routinely siphons billions of telephone calls and e-mail communications off of international fi ber optic cables passing though the United States and stores them in huge electronic vats, where they can be secretly searched years later, by computer, should a party to those communications become a “person of interest.” One purpose of these premature searches is to enable intelligence agencies to identify an individual’s extended network of family, friends, and associates, should the government wish to track him down, capture or prosecute him. Th is might make sense, if all political fu- gitives were indisputably terrorists, but it is a horrible idea if they happen to be freedom fi ghters for democracy or, more likely, political adversaries. Like any good scholar, and especially one with a sound moral compass, Ms. Rengel sees larger patterns where the rest of us may only see particularities. “As a general proposition,” she writes, “the right of privacy” has become so widespread in national practices and international agreements as to “become part and parcel of customary international law.” In one form or another, it can be found in the constitutions of most countries, if not expressly then as a necessary extension of other rights. And, of course, that is how most rights grow – less through bold declarations of positive law and more through incremental analogies from es- tablished principles that gradually reshape the legal and political expectations of people who count. One of the most useful aspects of this book is the sensible way in which it con- centrates on three areas of privacy law that have developed suffi ciently to become part of customary international law: search and seizure, intimate conduct, and data collection. In each realm, the autonomy and dignity of individuals is at stake. Th e law of search and seizure, which was developed to restrain law enforcement abuses, is now being eroded by those who would tear down the wall between law enforcement and intelligence. Th ese are the folks for whom “winning” the “war” on terrorism will justify almost any means, including torture – the ultimate vio- lation of both autonomy and dignity. However, at the international level, there is consensus that the home and the personal eff ects it contains are protected from governmental intrusion as well as intrusion by others. Privacy for intimate activities, on the other hand, is under constant threat by those who believe they are entitled to intrude in the personal freedom of indi- viduals to make their own choices about their identity or private conduct. Here the future of privacy will depend most on evolving concepts of equality within increasingly diverse societies.