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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].