The role of international human rights law in the protection of online privacy in the age of surveillance

Whilst the political dust on mass surveillance is slowly settling down, what has become apparent is the uncertainty regarding the interpretation and application of the right to privacy norms under Article 17 of the International Covenant on Civil and Political Rights 1966 in the context of cyberspace. Despite the world-wide condemnation of these practices by, inter alia, the United Nations and international human rights organisations, little consensus has been reached on how to bring them in line with international human rights law. This paper proposes that the most pragmatic solution is updating Article 17 by replacing General Comment No.16. There are many issues that require attention. The paper focuses on two fundamental aspects of this process, namely the development of more detailed understanding of what is meant by the right to privacy in the 21st century, and the challenge posed by foreign cyber surveillance to the principle of extraterritorial application of human rights treaties. To that end, the paper identifies that the ‘effective control’ test, developed by international human rights courts and bodies adopted to determine jurisdiction, is unsuitable in the context of state-sponsored cyber surveillance. The paper considers a number of suggestions made by legal scholars, which hinge on the control of communications, rather than the physical control over areas or individuals. Such a ‘virtual control’ approach seems in line with the jurisprudence of the European Court of Human Rights, according to which extraterritorial obligations may arise when states exercise authority and control over an individual's human rights, despite not having physical control over that individual. The paper argues that the ‘virtual control’ test, understood as a remote control over the individual's right to privacy of communications, may help to close the normative gap that state intelligence agencies keenly exploit at the moment.