State Sponsored Cyber Surveillance: The Right to Privacy of Communications and International Law PDF
Preview State Sponsored Cyber Surveillance: The Right to Privacy of Communications and International Law
State Sponsored Cyber Surveillance To my daughter, Elizka Jadwiga Watt State Sponsored Cyber Surveillance The Right to Privacy of Communications and International Law Eliza Watt Lecturer in Law, School of Law, Middlesex University, London, UK Cheltenham, UK • Northampton, MA, USA © Eliza Watt 2021 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Control Number: 2021932266 This book is available electronically in the Law subject collection http://dx.doi.org/10.4337/9781789900101 ISBN 978 1 78990 009 5 (cased) ISBN 978 1 78990 010 1 (eBook) 6 0 Contents Acknowledgements vi List of abbreviations vii 1 Introduction: the surveillance, security and privacy paradox 1 2 Cyber espionage, cyber surveillance, foreign electoral interference and international law 29 3 The right to online privacy as a customary international law rule 93 4 The principle of non-discrimination and the extraterritorial application of human rights treaties 142 5 Treaty-based privacy protection – interference 193 6 Treaty-based privacy protection – justifications 232 7 International law and the future of mass surveillance 271 8 Conclusion to State Sponsored Cyber Surveillance 327 Index 345 v Acknowledgements It is my great pleasure to thank Professor Marco Roscini for his support and sharing of his expertise, which helped to bring this book to fruition. I am also grateful to him for reviewing and providing invaluable comments and guidance on a number of the chapters. Equally, I am immensely indebted to Dr Russell Buchan, who offered critical insights and guidance on numerous aspects of the manuscript and supported the project from the outset. I am thankful to Ben Booth, senior commissioning editor at Edward Elgar Publishing, for his kindness, professionalism and understanding throughout the entire undertaking. My gratitude also goes to the editorial and production staff, including Carolyn Boyle, Natasha Rozenberg and Stephanie Mills. On a personal level, my deepest regards and gratitude go to my husband, Dr John H Watt, for his commitment and unwavering support throughout my education and during the process of this project’s completion. I would also like to thank a dear friend, Professor Aftab Khan of Leicester University, for being most extraordinary in relation to a whole host of personal matters. Last but not least, my mother Jadwiga, sister Agnieszka and two brothers, Rafał and Bogumił, have provided much-needed encouragement and have been pillars of strength during the completion of this book, for which I shall be always grateful. Finally, I dedicate this book to my daughter Elizka, for the love and happiness that she has brought to my life. vi Abbreviations ACHR American Convention on Human Rights ACLU American Civil Liberties Union ADHR American Declaration of the Rights and Duties of Man AG Attorney General AI Artificial intelligence ASR Articles on State Responsibility BCD Bulk Communication Datasets BND Federal Intelligence Service Act BPD Bulk personal datasets CCDCOE NATO Cooperative Cyber Defence Centre of Excellence CCPA California Consumer Privacy Act CJEU Court of Justice of the European Union CoE Council of Europe Covid-19 Coronavirus CSP Communication Service Providers CVA Coronavirus Act DNI Director of National Intelligence DoD Department of Defense DRD Data Retention Directive DRIPA Data Retention and Investigatory Powers Act DSL Data Security Law ECHR European Convention on Human Rights ECtHR European Court of Human Rights EEA Economic Espionage Act EFF Electronic Frontier Foundation EO Executive Order vii viii State sponsored cyber surveillance EU European Union FBI Federal Bureau of Investigation FISA/FAA Foreign Intelligence Surveillance Act/FISA Amendment Act FISA ARA FISA Reauthorization Act FISC Foreign Intelligence Surveillance Court FSB Federal Security Service GC Grand Chamber GCHQ Government Communications Headquarters GDPR General Data Protection Regulation GGE UN Group of Government Experts GRU General Staff Main Intelligence Directorate HRA Human Rights Act HRC Human Rights Committee HUMINT Human intelligence IACHR Inter-American Commission on Human Rights IACtHR Inter-American Court of Human Rights ICANN Internet Corporation for Assigned Names and Numbers ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic Social and Cultural Rights ICJ International Court of Justice ICT Information and communications technologies IDAA International Data Access Authority IDAW International Data Access Warrant ILC International Law Commission IoT Internet of Things IPA Investigatory Powers Act IPT Investigatory Powers Tribunal ISP Internet service provider MI5 Military Intelligence Section 5 MLAT Mutual Legal Assistance Treaty NGO Non-governmental organization Abbreviations ix NPO New Policy Opinion NSA National Security Agency OAS Organization of American States ODNI Office of the Director of National Intelligence OEWG UN Open-Ended Working Group on Developments in ICTs in the Context of International Security OHCHR Office of the High Commissioner for Human Rights OSA Official Secrets Act PA Patriot Act PCIJ Permanent Court of International Justice RIPA Regulation of Investigatory Powers Act SC Supreme Court SCA Stored Communications Act SCO Shanghai Cooperation Organization SIA Swedish Intelligence Act SICJ Statute of the International Court of Justice SIGINT Signals intelligence UDHR Universal Declaration of Human Rights UN United Nations UNGA United Nations General Assembly UNODA United Nations Office for Disarmament Affairs VCLT Vienna Convention on the Law of Treaties
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