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MILAN LIPOVSKÝ CYIL 7 ȍ2016Ȏ
The idea of establishing a State’s control under already existing rules is suddenly not
so controversial.
The preamble of the ICCPR also refers to “universal respect for […] human rights
and freedoms” and so requiring states to respect all the rights encompassed in the
Covenant regardless of where their recipients are located.
And if the same provision (e.g. art. 17 ICCPR) applies, thus rendering the
surveilling State as a violator of its international legal obligations, the obligations of
such State are the same towards its citizens as well as foreigners. It does not matter
where they are located. What matters is that they were affected by the wrong doing.
And as such, it may not be accepted for one to hold foreigners discriminated against
in relation to surveillance.30 Some things have been already improved in this regard
in the United States by US Presidential policy directive issued by President Obama
in 2014. This directive identifies the key problem of surveillance (the directive speaks
of foreign intelligence and counterintelligence) exercised “in bulk”.
“Routine communications and communications of national security interest
increasingly transit the same networks, however, and the collection of signals
intelligence in bulk may consequently result in the collection of information about
persons whose activities are not of foreign intelligence or counterintelligence value.”31
Section 2 of the presidential policy directive mentions limitations on the use
of signals intelligence collected in bulk and expresses the concept that the limits
are intended to protect privacy regardless of nationality or place of residence.
On the other hand, the document, though quite specific, is often open to a wide
interpretation as to legitimate interests when counterweighing privacy issues with
national security. And above all, it is not self- executing, as its final provision states.
To sum up the above-mentioned, it is quite clear that a vast majority of
the international community agrees that the right to privacy does in fact apply
extraterritorially. For example the European Court of Human Rights has shifted away
from strict territorial control to States’ ability to respect rights even extraterritorially.32
Hence it does not matter whether surveillance is being conducted domestically
only (which is very unlikely) or across borders as well. It needs to fulfill the same
standards of human rights protection. It is of course very difficult to control States
in their surveillance activities because they may be conducted in secrecy. Recent
revelations of the activities of some States have changed this disadvantage of the
30 The issue is discussed for example by BROWN, Ian. The Feasibility of Transatlantic Privacy – Protective
Standards for Surveillance. InInternational Journal of Law and InformationTechnology, 2015, 23-40, p. 29.
31 USA, Presidential Policy Directive (PPD-28) – Signals Intelligence Activities, January 17, 2014.
Available at
intelligence-activities> [last visited June 9, 2016].
32 DEEKS, Ashley. An International Legal Framework for Surveillance. In 55 Virginia Journal of
International Law (2015), footnote no. 56 on p. 308.