Abstract
The digital age has brought new possibilities and potency to state surveillance activities. Of significance has been the advent of bulk communications data monitoring, which involves the large-scale collection, retention and subsequent analysis of communications data. The scale and invasiveness of these techniques generate key questions regarding their ‘necessity’ from a human rights law perspective and they are the subject of ongoing human rights-based litigation. This article examines bulk communications data surveillance through the lens of human rights law, undertaking critical examination of both the potential utility of bulk communications surveillance and – drawing on social science analysis – the potential human rights-related harm. It argues that utility and harm calculations can conceal the complex nature of contemporary digital surveillance practices, rendering current approaches to the ‘necessity’ test problematic. The article argues that (i) the distinction between content and communications data be removed; (ii) analysis of surveillance-related harm must extend beyond privacy implications and incorporate society-wide effects; and (iii) a more nuanced approach to bulk communications data be developed. Suggestions are provided as to how the ‘necessity’ of bulk surveillance measures may be evaluated, with an emphasis on understanding the type of activity that may qualify as ‘serious crime’.
Highlights
The digital age has sparked a fundamental transformation in state surveillance, both in terms of how surveillance is conducted and the types of insight it is intended to facilitate
To examine the specific human rights issues raised by the bulk collection of communications data at a more universal level, this article will focus on the third part of the human rights law test: evaluating the necessity in a democratic society of bulk communications surveillance
In determining how human rights law could more effectively respond to bulk communications monitoring, four factors should be taken into account: (i) the extent of information that can be revealed by communications data; (ii) the extent to which harm associated with the retention of communications data affects other rights; (iii) the ease of analysing communications data; and (iv) the operational utility of bulk collection
Summary
The digital age has sparked a fundamental transformation in state surveillance, both in terms of how surveillance is conducted and the types of insight it is intended to facilitate. Is the surveillance necessary in a democratic society – that is, does it answer a pressing social need and is it proportionate to the legitimate aim pursued?10 Evaluating the legal basis, and the quality of this legal basis, is dependent on the specific legal framework applicable in a given jurisdiction, while the uses of surveillance measures by intelligence and security services typically satisfy the legitimate aim test on the basis of protecting national security or public order.[11] As such, and to examine the specific human rights issues raised by the bulk collection of communications data at a more universal level, this article will focus on the third part of the human rights law test: evaluating the necessity in a democratic society of bulk communications surveillance This requires an examination of both the potential utility,[12] and the potential human rights-related harm, of this practice. We provide guidance on how the ‘necessity’ test can be applied in the context of bulk surveillance, and addresses how current broadly conceived notions of ‘serious crime’ can be revised
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