Privacy and Proportionality: Examining Mass Electronic Surveillance under Article 8 and the Fourth Amendment

Abstract

Summary An individual citizen’s right to privacy has found extensive protection in the modern democratic state. However, with the increase of technological innovation and new kinds of threats, democratic states must grapple with balancing a problem that can never be wholly solved—governments seeking to create the optimal degree of security inevitably conflicts with citizens’ optimal degree of privacy. This article examines one vehicle through which governments have prioritized national security at the expense of individual privacy: mass electronic surveillance. Employing the case study method, this article compares three cases where mass electronic surveillance measures were challenged before the European Court of Human Rights under Article 8 against four cases where such measures were challenged in the U.S. judicial system under the Fourth Amendment. This article seeks to determine how the treatment of privacy infringements created by mass electronic surveillance differs when examined in these two different privacy regimes. I argue the Strasbourg Court’s use of what is known in the literature as the “proportionality analysis” provoked by Article 8(2) allows for more substantial protections of privacy rights in Europe than under the Fourth Amendment in the U.S..