Surveillance and human rights: new risks in the digital age

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Author: Elvira Talapina

Keywords: algorithm; discrimination; mass surveillance; personal data; privacy

DOI: 10.21128/1812-7126-2021-6-123-136

Abstract

Supervision as data collection is more likely to manifest itself in the digital era as surveillance which menaces the realization and protection of human rights. It is possible, and conventional, to divide surveillance depending on who is doing it – government or private companies. Another basis of division is mass or targeted surveillance. According to its coverage, surveillance may be internal (not exceeding the borders of the State) or external. In today’s context, mass surveillance is not necessarily limited to secret services and national security. The grounds and motives for surveillance are constantly expanding (the most recent being the surveillance of coronavirus-infected persons), which only multiplies the risks of human rights violations. At the same time, even judicial attitudes toward mass surveillance have changed under the influence of the terrorism situation and other changes in the international arena (ECtHR judgement, Big Brother Watch and Others v. the United Kingdom). The problem is exacerbated when one considers that private companies can also carry out surveillance. From this point of view, there are no strict differences between State surveillance and private sector surveillance, and a feature of surveillance such as intrusion into privacy (Court of Justice of the European Union, Digital Rights Ireland and Seitlinger) is preserved in both of them. A modern approach to privacy protection should be based on the fact of the constancy (uninteruptedness) of surveillance carried out by both the State and private actors. Privacy protection in the digital age is built on the concept of Privacy by Design (privacy by default). However, in a mass surveillance environment, threats to privacy are unavoidable, so experts have proposed replacing Privacy by Design with Minimum Harm by Design. This approach may be explained by the Anglo-Saxon influence on the continental legal system. As risks to the right to equal treatment and nondiscrimination increase with the spread of surveillance, algorithm evaluation and certification can help in overcoming the risks of discrimination. In the digital environment, protection of human rights becomes even more important. Article 2 of the Russian Constitution assigns this function to the State, but the State tries to share it with the private sector and citizens themselves (meaning a number of private sector responsibilities to ensure data protection, attempting to recognize citizens’ “property rights” to personal data and free circulation of data). Consequently, the search for consensus and a balance of interests in this domain is relevant.

About the author: Elvira Talapina – Doctor of Sciences in Law, Institute of State and Law of the Russian Academy of Sciences, Moscow, Russia.

Citation: Talapina E. (2021) Nablyudenie (slezhka) i prava cheloveka: novye riski tsifrovoy epokhi [Surveillance and human rights: new risks in the digital age]. Sravnitel'noe konstitutsionnoe obozrenie, vol.30, no.6, pp.123–136. (In Russian).

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