J. Surveillance, data protection and the right to
privacy
Article 17 of the International Covenant on Civil and Political Rights
prohibits States parties from interfering with the privacy of those within
their jurisdiction and requires them to protect those persons by law against
arbitrary or unlawful interference with their privacy. Privacy includes
information about an individual’s identity, as well as the private life of the
person.101
Most States have stepped up security at airports and other places of
transit, for instance by collecting biometric data from passengers (such
as eye scans and fingerprints), photographs, passport details and the like.
States have for a long time provided their security intelligence services
with powers of surveillance, including wiretapping and the use of tracking
devices. Some States have significantly extended these surveillance powers
in recent years. All of these practices involve the collection of information
about a person. They therefore limit the privacy of such persons, as well as
raising questions about how the data are to be protected. Interference with
privacy also arises in the security screening and searching of persons.
Any act which has an impact on a person’s privacy must be lawful, i.e., it
must be prescribed by law.102 This means that any search, surveillance or
collection of data about a person must be authorized by law. The extent
to which this occurs must not be arbitrary, which in turn requires that the
legislation must not be unjust, unpredictable or unreasonable. The law
authorizing interference with privacy must specify in detail the precise
circumstances in which the interference is permitted and must not be
implemented in a discriminatory manner.103 This does not mean, however,
that States enjoy an unlimited discretion to interfere with privacy, since
any limitation on rights must be necessary to achieve legitimate purposes
and be proportionate to those purposes. Regard must also be had to
the obligation of States to protect against the arbitrary exercise of such
authorizations. Thus, in Klass v. Germany for example, the European Court
of Human Rights stated that it must be satisfied that any system of secret
surveillance conducted by the State must be accompanied by adequate
and effective guarantees against abuse.104
Where personal information is collected, the data must be protected against
unlawful or arbitrary access, disclosure or use. Although jurisprudence on
this duty is scarce, the Human Rights Committee, in its general comment
N° 16 (1988), has explained that States must take effective measures to
ensure that information concerning a person’s private life does not reach
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