Lecture profile: ‘Human Rights and Foreign Surveillance – Privacy in the Digital Age’

Human Rights and Foreign Surveillance: Privacy in the Digital Age. University of Liverpool, Liverpool Law School. A talk for the International Law and Human Rights Research Unit by Dr Marko Milanovic, Associate Professor, University of Nottingham School of Law. Introduced by Dr Kanstantsin Dzehtsiarou. Senior lecturer in law University of Liverpool

You might think that a talk in the format and style of an undergraduate lecture, in a large and scruffy seminar room would be boring, but for those interested in the dilemma of how to preserve personal freedom whilst also working to prevent terrorism, this was an opportunity to learn from someone who has studied the issues in depth and really knows his stuff.

Dr Marko Milanovic is Vice-President and member of the Executive Board of the European Society of International Law, an Associate of the Belgrade Centre for Human Rights, and co-editor of EJIL: Talk!, the blog of the European Journal of International Law, as well as a member of the EJIL’s Editorial Board. He was Law Clerk to Judge Thomas Buergenthal of the International Court of Justice in 2006/2007. He has been a visiting professor at the University of Michigan Law School and at the Geneva Academy of International Humanitarian Law and Human Rights. He has published in leading academic journals, including the European Journal of International Law and the American Journal of International Law; his work has been cited, inter alia, by the UK Supreme Court and by the International Law Commission. He was counsel or advisor in cases before the International Court of Justice, the European Court of Human Rights, and the Constitutional Court of Serbia. His book Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy, was published by Oxford University Press in 2011.

Some of the references may not have been familiar to non law students but neither I nor the predominantly young student audience were drowned in jargon and the lecture took us through some of the main issues surrounding the legality of the mass collection of data from ordinary individuals, which diminishes personal freedom but is necessary to prevent terrorism.

After Snowden in 2013, there has been a widespread debate about the limits of intelligence activity, and its legality has been assessed within the framework of international Human Rights Law, and inter-state treaties. The big question is whether the same thresholds of legality apply to extra territorial surveillance. The tapping of Angela Merkel’s phone was given as an example, with the suggestion that being a public figure is used as a justification for interference, so that the more public a person you are, the less right you have to privacy – yet we all have the right to some privacy.

Dr Milanovic described how International law is changing, spying is not regulated and some states are better at it than others. He referred to the ‘Five Eyes’ and assumed his audience would know about this. I did not! A Google search later revealed that the Five Eyes Alliance of five English-speaking countries (the US, the UK, Australia, Canada and New Zealand) was developed in 1946, when they formed  a series of  bilateral agreements that became known as the UKUSA agreement for the purpose of sharing intelligence. For almost 70 years, this secret post-war alliance of five English-speaking countries has been building a global surveillance infrastructure to “master the internet” and spy on the world’s communications.’ (https://www.privacyinternational.org/node/51) These countries have the capability to divert 90% of the world’s routers. Dr Milanovic suggested that they use the information to spy on other countries, and the biggest fear is that the information gleaned by one government can be used by others to target their own populations. He said that all of the 5 Eyes, with the exception of the UK, make critical distinctions on the basis of citizenship, and do not focus on their own citizens, but if you are not a citizen you have no rights. However even the UK has been said by the chief of GCHQ to apply preferential treatment in practice, for UK citizens. In some traditions, citizenship is the basis for rights, but in Human Rights we have rights because we are human! The basic problem however is how to prove your Human Rights have been affected.

There was a salutary reminder that compared with the old days, we now carry our own surveillance everywhere we go. With modern technology, we all effectively enable spying on ourselves through the monitoring and tracking devices on our laptops, cameras and mobiles. Certain Apps like Flappy Bird make it alarmingly easy to hack into an individual’s mobile phone. We were reminded of those companies such as Google and Apple that are routinely spying on us all, with our complacent consent, as we accept their terms and conditions without reading them. It is the quality of domestic law that is critical and it is Dr Milanovic’s view that this sort of activity should be regulated by the state.

However, the nature of surveillance is changing, and there is little initial focus on us as individuals. The aggregation of ‘big data’ allows the subsequent identification of those the state may be more interested in, and that is where the Human Rights perspective becomes more interesting.

Dr Milanovic took us through International Human Rights Law, and treaties and said that it has little to say about spying. Some states are signed up to treaties such as the International Covenant on Civil and Political Rights (ICCPR) or the European Convention on Human Rights (ECHR), which enshrine the individual’s the right to privacy and protection from arbitrary or unlawful interference. He showed how Human Rights law is starting to be used as an argument by political bodies, highlighting the importance of the Strasbourg case in the follow up to Zakharov v Russia, and the recent UK introduction of the revised version of the Regulatory Powers Bill. This aims to avoid similar litigation, and now includes stronger privacy safeguards using the ‘double lock’, explicitly banning our agencies from asking foreign intelligence agencies to undertake activity on their behalf unless they have a warrant approved by a Secretary of State and UK Judge.

The essential question is how useful big data is really, and then how to hold states to account if they fail to deliver the evidence.

This summary can only provide a taste of what was a thought provoking talk, and this was reflected in the wide range of questions at the end. In answer to a question on Brexit, we were told that currently the UK is liable under the EU Convention, and a leave vote would undoubtedly have a diminishing effect on our privacy.

Liverpool University Events are free and open to the interested general public. They offer a fabulous opportunity to learn more about complex and topical issues.