CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ DIGITAL ASPECTS OF THE RIGHT TO PRIVACY ȃ SURVEILLANCE ISSUES That is connected with so-called surveillance . In general, surveillance means watching over someone/something, but within the context of privacy, it means interference within another person’s private sphere by observance of his/her activities. It can take the form of “natural” observance as well as digital forms, for example tapping one’s phones, surveillance of his/her electronic communications etc. In order to fulfill the requirements of human rights protection, surveillance must always fulfill certain conditions. In a case of indiscriminate nature, when the observation is not limited to a particular activity and has unclear objectives, it is called mass surveillance ; on the other hand, if it is legitimate – mostly focused on a particular person for a particular (mostly suspected criminal) reason, established in accordance with law, it is called targeted surveillance . Sometimes the scope of surveillance is even denoted as what differentiates democracy from police states. 5 It is necessary to distinguish surveillance from espionage . 6 While it is probable that espionage is a so-called lacuna in international law (an area not regulated by international law), 7 surveillance is regulated by international human rights obligations of States. 8 After-all, espionage, in its very essence, is focused on gaining advantage over an adversary by finding out his/her weakness; surveillance is not directed in the same way. In relation to legal issues, it is mostly directed at finding out the illegal activities of individuals; espionage is on the other side of the coin – it is activity that is usually considered illegal under domestic law. The core issue of this article focuses on the term privacy , and so an explanation of this is important as well. There is no doubt that privacy is one of the key elements of human rights protection. It is the core of individual self-determination and a requirement for personal development. According to the European system (both the EU and Council of Europe) interpretation, it means (among other things) the right to be left alone and requires non-interference with an individual’s decisions. 9 Another very important term refers to the so-called metadata . This word comes from the Greek language and simply means data about data and describes them. 10 For the purpose of using it in relation to modern technologies such as email communication, it 5 BIGO, D., CARRERA S., HERNANZ, N., JEANDESBOZ, J., PARKIN, J., RAGAZZI, F., SCHERRER, A. Mass Surveillance of Personal Data by EU Member States and its Compatibility with EU Law, p. 11. Available at [last visited June 10, 2016]. 6 I see a reason for this distinction in reasons discussed later in this section. But I am aware of the fact that not everyone distinguishes these two instruments: DEEKS, Ashley. An International Legal Framework for Surveillance. In 55 Virginia Journal of International Law (2015). 7 DEEKS, Ashley. An International Legal Framework for Surveillance. In 55 Virginia Journal of International Law (2015), p. 301. 8 See the following chapter of this article. 9 ZIEMELE, Ineta. Privacy, Right to, International Protection. In Max Planck Encyclopedia of Public International Law, s. 1. Available online through database of http://opil.ouplaw.com/home/epil. 10 Webpage URL [last visited June 7, 2016].

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