Seminar Series Interview #1: Mass Surveillance and International Law

As a part of the ILC’s Seminar Series, students who present will be interviewed on their research topic. Isabella Bogunovich presented at the first ever Seminar Series on Mass Surveillance and International Law, and is the editor of the ILC’s upcoming International Law Journal.

Isabella Bogunovich is a sixth year LLB and Arts student with an Arts major in Political Science and International Relations. As part of her law degree, she took Public International Law and participated in the 2016 Philip C. Jessup International Law Moot. When I ask her about career goals, she jokes about wanting to be Amal Clooney (don’t we all), but also talks about the possibility of working in the public sector, where most of the opportunities for international law in Australia lie. Isabella is the ILC’s International Law Journal editor and presented on “Mass Surveillance and International Law” at the ILC’s first Seminar Series. She first developed an interest in the topic after studying it over the summer as a part of the Jessup Moot.

“It’s such an interesting and topical area. The Snowden revelations came to light in 2013, and there’s a lot written on mass surveillance in the digital age, but it’s still quite new and there’s not a lot of consensus.”

The right to privacy is covered in international law under Article 17 of the International Covenant on Civil and Political Rights (ICCPR), which protects an individual from unlawful or arbitrary interferences with their right to privacy.

“Arbitrariness looks at whether the interference is necessary and proportional to a legitimate aim,” she explains. “Something such as combating terrorism has been recognised as a legitimate aim almost universally in places like the United Nations General Assembly, the European Court of Human Rights and Reports by Special Rapporteurs.”

The issue is that the ICCPR was adopted in 1966, and was originally legislated around phone tapping. If a phone line was tapped, the one ongoing conversation was recorded, and the invasion of privacy was limited. The fact is that international law has failed to evolve at the same rate as technology. The ICCPR is the legal equivalent of parents on Facebook: it isn’t one hundred percent wrong, but it’s navigation of the technological landscape of the twenty-first century is awkward at best, and embarrassing at worse.

“Today we live so much of our lives online, and the information that we send is potentially recoverable by intelligence agencies. There are instances in the US where government agencies have asked companies like Google or Facebook to turn over users’ data. Interferences with privacy are no longer about tapping a single landline but having access to a person’s emails, texts, calls, transactions and search histories. What some would call ‘your whole life’ could be accessed, so it’s very interesting that the legal protections we have for privacy at international law are over half a century old. I don’t know if back in the sixties the drafters of the ICCPR could have envisaged the technological landscape and the amount of user data available now.”

Reports were released alleging an entire 97% of the information the NSA is processing is irrelevant to national security concerns. Where does the law enter in regards to innocent people whose information is screened, and whose privacy is thus being violated?

“This is covered under the element of proportionality which falls under whether an interference with privacy is arbitrary. When you’re considering mass surveillance and its ability to find threats and combat terrorism, you’re essentially opting in for a needle-in-a-haystack hunt. You are looking at a huge population, a very minute percentage of which could be potentially complicit in contributing towards terrorism or committing a terrorist act. When considering whether this surveillance and interference with privacy is necessary or legitimate in combating terrorism, you have to consider the effect it has on the haystack as a whole, not just on the needle.”

To some extent, domestic law accounts for privacy laws. In the US, a case was brought under an amendment regarding unlawful governmental search and seizure, as outlined in the US bill of rights. However, most of the work written on the topic resides in European law journals, and a lot of case law regarding the right to privacy falls under the European Convention on Human Rights, which has a provision very similar to Article 17 of the ICCPR.

In Australia, mass surveillance made national news when new metadata retention laws were legislated by the Australian government.

“Metadata isn’t the actual communication, it is the details about the communication. For example, if I sent a message to you it wouldn’t say what that message was, but it would say what time it was sent, how long it was, and that it was from me to you. It’s the descriptive stuff. However, the European Union Court of Justice has considered that if a large enough amount of descriptive information were taken, that could constitute a breach of privacy because there is enough there to draw conclusions about the contents or the user’s life.”

Domestic law has to be compliant with international law. In Australia, search warrants are required to access information regarding phones, but the new laws to do not outline the same condition for accessing metadata. Can international law make adjustments for this?

“Domestic laws must as a general rule comply with international law. In order for interference with privacy to not be ‘unlawful’ within the meaning of Article 17, the interference must comply with the interfering State’s internal laws and those laws must specify the precise circumstances in which interference is permitted This means that domestic law has to be sufficiently precise and could require noting under what circumstances recourse can be had to that metadata, for what reasons it can be accessed, how long it can be accessed and stored and from what time period the data can originate.

One issue which could arise in this context is that whilst legislation in most countries is generally readily available online and new legislation is frequently reported on, the way in which intelligence agencies interpret that legislation when collecting data may be different to how most citizens would interpret the legislation. If, for example, an intelligence agency took an expansive approach as to what data it could collect or obtain it could be argued that a higher percentage of threats might be caught. The downside of this is that citizens may not be aware of how pervasive the data collection is which may mean that it is in fact not sufficiently ‘lawful’. It really is a balancing act and there is a wide variety of views from human rights bodies, courts and states as to when this sort of situation would contravene Article 17.

It’s why Snowden is such a polarising figure. Some people think he’s a hero, and some people think he’s a traitor.”

But interviews are all about asking the hard-hitting questions, so I have to ask the weighted one: was Snowden right to reveal the information that he did?

“It’s a very difficult question to answer. He has been charged with every serious data security theft offences and espionage. Generally, the idea of having whistle-blowers and protections for whistle-blowers is that they can provide an important check on the government and organisations, particularly where the only evidence of wrongdoing lies with the organisation itself. At the same time though, Snowden’s actions allegedly break very serious laws and the nature of the information leaked, given that it was confidential or covert, does have the potential to endanger operatives or compromise specific security operations. It’s one of those things where there is no simple answer to whether it’s right or wrong, I think in a way it could be considered both right and wrong.”

Spoken like a true lawyer.

Kylie Mathews is a third year Communications & Media and Economics student and procrastinates essays by writing for JusT Cogens.

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