CYIL Vol. 7, 2016

MILAN LIPOVSKÝ CYIL 7 ȍ2016Ȏ is authorized to conduct data surveillance, and under what circumstances, ” 37 to fulfill the requirement of necessity, the limitation “ must be necessary for reaching a legitimate aim, ” 38 and finally to fulfill to test of proportionality, it must be “in proportion to the aim and the least intrusive option available [footnote omitted] . ” 39 A very important issue remains though that the essence of the right must not be rendered meaningless. 40 It has already been discussed above whether so-called mass (or bulk) surveillance fits within the limits of the convention-respecting activities of States. It is true that views of individuals as to the legitimacy of mass surveillance may differ. The fact remains though that the indiscriminate nature of holding the whole society as suspects and so collecting their personal data and metadata of their communications (as opposed to targeted surveillance that has a reasonable discriminatory nature), can not be in accordance with the right to privacy in any way. Combined with the fact that according to recent statements and proposals of States supporting the opinion that the right to privacy has its digital part that needs effective protection as well, 41 it is necessary to amend international provisions protecting the right to privacy. The sooner the better for both protections against terrorism and the right to privacy. The current unclear regulation does not serve any of those important principles well. The right to effective remedy has been discussed above as well. There is no reason to doubt that even the right to (digital) privacy requires a system of effective remedy. It actually requires it even more because of the nature of cyber space and due to the amount of information people increasingly reveal about themselves online. We may discuss whether they give up their information willingly or not, but the fact remains that we all are required to access online banking, emails, communication with government through data mailboxes etc. even if we do not want it. 5. Conclusion The right to privacy is a complex issue that gains in importance due to the evolving technologies. A skilled hacker might gain access to a lot of personal data, but the more effective in this regard may be governmental authorities. On one hand, there is a need of protection against terrorism and even regular criminality. Both mass and targeted surveillance are indeed very effective tools. Targeted surveillance, if fulfilling all the legal requirements, poses no real problem. Mass surveillance is another issue. It treats everyone as a suspect. It is understandable that intelligence services feel the need to use mass surveillance in extreme situations, but doubts about the legality of 37 Ibid. , p. 8. 38 UN, The Right to Privacy in the Digital Age. Report of the Office of the United Nations High Commissioner for Human Rights. A/HRC/27/37, p. 8. 39 Ibid. , p. 8. 40 Ibid. , p. 8. 41 URL [last visited June 9, 2016].

264