A Critical Assessment on the Extraterritorial Application of Human Rights Treaties to Transnational Cyber Surveillance

The issue of mass transnational cyber surveillance arises in a time when there has been a clear trend of expanding the application of human rights treaties. So it was not surprising that in the report on privacy in the digital age produced by the Office of the High Commissioner for Human Rights in July 2014, when addressing extraterritorial surveillance and interception of communications, the report restated that ‘A State may not avoid its international human rights obligations by taking action outside its territory that it would be prohibited from taking “at home”’ and that “This holds whether or not such an exercise of jurisdiction is lawful in the first place, or in fact violates another State’s sovereignty’ . The control standard to be applied to cyber surveillance triggering jurisdiction given in this report may well be controversial, but the trend recognizing extraterritorial application is certainly clear. However, the report was silent on the substantive requirements to be applied to transnational cyber surveillance. By addressing in separate sections the scope of human rights protection, i.e. the application of the law, and the substantive requirements of lawful interference on fundamental freedoms such as the right to privacy, it seemed as if once the law was applicable, the requirements applied to internal and foreign surveillance in the same way. And no distinction between internal and foreign surveillance was made in its recommendation on furthering the analysis on the principle of necessity, proportionality and legitimacy in relation to surveillance practices.

In this essay, I question the appropriateness of applying to transnational cyber surveillance the substantive requirements of lawful domestic surveillance developed from international human rights treaties and relevant case law. And I argue in the negative. Therefore, for the purpose of this essay, I would not delve into the highly debatable issue of what counts as “control” in cyber surveillance and which standard of control triggers a state’s jurisdiction. Instead, this essay assumes that a control test was established. In the following section, I shall examine the substantive requirements for states restricting fundamental freedoms drawn on from current human rights case law. And I shall demonstrate why these tests, which are designed for internal surveillance, will be problematic if applied to foreign cyber surveillance. My approach is territorial. And the core of the problems, I argue, is that the legal and political implications of territory and border, as currently understood, cannot provide a satisfying theoretical basis for expanding states’ regulatory power extraterritorially. I understand that my territorial approach may be considered very conservative, or Westphalian, and therefore, I would address some potential responses to my arguments in the conclusion.