CYIL Vol. 7, 2016

MILAN LIPOVSKÝ CYIL 7 ȍ2016Ȏ privacy has its digital aspect and respects that everyone has the right to know whether he/she has been surveilled or not. Hopefully, the universal level of human rights protection will be inspired by the European Union in this regard. 4. The right to digital privacy issues The following chapter focuses on several of the above-mentioned aspects and adds some others in order to discuss them in more detail. 4.1 Does the right to privacy encompass even the right to “digital privacy”? On January 21, 2014 the United Nations General Assembly adopted resolution 68/167 which affirmed in article 3, that “the same rights that people have offline must also be protected online, including the right to privacy.” There could not be a clearer statement as to whether the right to privacy encompasses even the digital sphere or not. “[T] here is little doubt that [the right to privacy] applies to a state’s domestic collection of data about a person when that collection constitutes ’interference,’ and many would agree that correspondence includes a person’s online and telephonic communications. ” 26 However the answer is still not enough to safeguard one’s rights, unfortunately. 4.2 Extraterritoriality The character of cyber space is of such a nature that it naturally crosses borders of States. Even if computers in which the surveilled data were created (e.g. email written) were located within the territory of one State, a company providing the email services could be located in another country and its servers in a third one. Moreover, the data may travel across international waters and a fourth state’s territories. The extraterritorial application of human rights protection must thus be taken into consideration. Since its application became a matter of controversy, let us focus on the ICCPR. Its article 2(1) states that: “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant …” [emphasis added] I had not seen a problem in this provision until I read the articles of a few scholars reminding me that there are some interpretations enabling states to circumvent their obligations. The main point lays in the fact of using “and” between the territory and jurisdiction of States in article 2(1) ICCPR. Hence, these ideas are based on the fact that if a State actually surveilles communication of anyone located out of its territory, article 2(1) ICCPR prevents the application of the Covenant because 26 DEEKS, Ashley. An International Legal Framework for Surveillance. In 55 Virginia Journal of International Law (2015), p. 305.

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