Privacy and the legalisation of mass surveillance: in search of a second wind for international human rights law
This paper revisits the traditional trade-off between privacy and security, which underpins the compatibility of general and indiscriminate mass surveillance (or bulk interception) with international human rights instruments, and extends the orthodox patterns of legal argumentation using interdisciplinary knowledge, which is able to nurture, and to be translated into, the language of International Human Rights Law. In search of new resources for the overburdened legal concept of privacy, this research combines a positivistic legal perspective with knowledge from sociologically framed surveillance studies, political theory, behavioural economics, and computer science, and deals with the threats and responses thereto from this epistemological standpoint. The first of three threats singled out in the paper—the ‘securitisation’ of the danger of terrorism—is treated through embedding the effectiveness of predictive algorithms to the proportionality test. The second one - a consensus of states to use bulk interception tools is suggested to be dealt with by transposition of issues of fair representation to the standard of review. The third threat, which is the shift of social norms towards the permissibility of being watched, is considered through the lenses of the complementation of an individual reading of privacy as a right and a value by a collective one.