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The International Protection of the Private Sphere in Times of Digital Surveillance

This project is located in the broader context of the question of determining the applicability and the scope of application of the right to privacy (and related rights) in international law, in the particular context of international digital surveillance activities, originating both from states and corporations. 
 
The starting point of the project is to address the deficit, specific to this context, of international human rights protection due to several factors and arguments often brought forward in legal and political discourses. Thus the first step undertaken is to assess some of the most prominent factors that are often cited as explaining this “deficit” and confronting them to the reality of the applicability and scope of application of human rights in this context. 
 
I can refer here, among the most important of those rationales, to the technological factor, the growing concern at the international level relating to “new security threats”, and the rationales proper to international digital surveillance itself. In this latter case, it is often argued that human rights protection (sometimes, altogether with international law constraints) are relatively irrelevant to the realities of intelligence-gathering, espionage and international digital surveillance. Proponents of this view hold that these activities are necessarily and by definition opaque and that they belong to the core of the sovereign prerogatives of states. Another factor relates to the predominant role of private actors, especially transnational corporations, that would prevent the applicability of human rights to these practices. An additional classical argument is that surveillance measures, especially at the international level, have no harmful effect and cannot be seen as reaching the threshold of being of a coercive nature under international law. These rationales have the potential to explain or even justify the non-applicability of human rights, or their limited scope of application to this phenomenon. 
 
Against this backdrop, three main challenges will be dealt with in this dissertation. Firstly, the task to identify and systematize a relevant set of human rights that are built around the right to privacy (as a rights-enabler) and can be affected by international digital surveillance measures. A pressing question is whether an internationally protected private sphere exists that could be anchored in international human rights law and other relevant instruments at the international level. This set of human rights incorporates rights pertaining to international human rights law, the Internet governance principles and instruments of regulation of the digital environment, as well as extraterritorially applied domestic human rights. An illustration of the latter is the application of EU data protection regulations to corporations incorporated in the USA or India, having substantial activities within Europe. Finally, the controversy surrounding the question of the adaptation of human rights to the digital environment will be treated by taking into account mechanisms of public but also private law (of a particular importance for the digital environment).
 
The second main research question concerns the question of the extraterritorial application of human rights to international digital surveillance activities that affect individuals located outside of the territory where the surveillance activities stem from. 
 
The third focus lies on the question how to legally assess the involvement of both public (state actors) and private actors (mainly corporations, but also individuals) to international digital surveillance practices. This will be done from the viewpoint of their (potential) responsibility and accountability, at the international level, for violations of human rights norms. This part of the dissertation will draw on methods and findings derived from the “principles of shared responsibility” (as mainly developed within the SHARES project of the University of Amsterdam). 
 
The intra-disciplinary nature of this research is a key aspect of this complex topic given the fact that it is at the intersection of various fields of law: public international law, private international law, international and European human rights law, data protection law, the principles of Internet governance, and so forth. The topic of this dissertation is moreover at the cross-roads of several recent major developments in the international society: the increasing use of technological capacities to collect personal data on a massive scale for national security reasons, the emerging demands both at the international and domestic levels to offer legal venues to contest the use of those capacities, and the claims made to ensure the confidentiality and security of digital communications (anchored in the classical relationship between power exercised and secrecy/transparency game relations). One clear fact to date is the core importance given to cyber instruments in international relations, as the multiplication of dedicated state structures dealing with cyber activities clearly illustrates. 
 
In order to deal with the complexity of this phenomena, the approach followed in this research will mix positivist/technical perspectives, and normative/theoretical ones. This is in fact necessary because existing rules need to be analysed in light of the many reform proposals from states, corporations, the civil society and other type of actors. A particular role will be attributed to the expanding range of primary sources. This includes in international law (and transnational law): the case-law of international courts, regional human rights courts, domestic courts dealing with international surveillance, acts from international organisations, reports of human rights protection bodies, declaration of states and representative of states, soft law instruments developed by the corporate sector, standards of the Internet governance, proposals and reports from NGOs and the civil society (including whistle-blowers). 
 
Languages of the dissertation: French and English (extended summary of the dissertation, written within the framework of the double Ph.D. degree undertaken both at Paris 1 Pantheon University and at the Freie University zur Berlin).

PhD candidate

Milan Tahraoui

Ph.D. candidate both at Paris 1 Pantheon-Sorbonne University and Freie Universität Berlin

Supervisors

Anne Peters

Evelyne Lagrange (Paris 1 Pantheon-Sorbonne University)