By María Belén Silva Campos
The events of September 11, 2001 led, aside from the emergence of a new international political-legal order, to the rise of a new phenomenon: global terrorism. Since then, the fight against this phenomenon has increasingly required global efforts to cope with the challenges and significant implications that it has for security, the rule of law, the fundamental values of States, as well as human rights (HHRR).
The international community has enhanced its cooperation by promoting actions and legislation in order to effectively respond to terrorist attacks, end their spread, and protect the core values of States, as well as individual rights. Nevertheless, terrorism is not only directly impacting the respect for HHRR, but it is also placing States in a difficult position as to what extent these rights can be guaranteed within its fight.
This is the case of the right to private life, a HHRR which entitles individuals to privacy and personal data protection. Since anticipating and preventing future attacks presents a key counter-terrorism measure which requires the “collection, storage, analysis, sharing and use of personal data,” data protection is seen as an obstacle to effectively implement such measures.
As we are living in a digital society with continuous developments in technology and communications, private data is being collected for various reasons. Thus, it seems as though the concept of private information no longer exists, since data surveillance, or “dataveillance,” appears to be a process that nobody can escape.
This is important in the fight against terrorism, a phenomenon that, according to the Council of Europe, “jeopardizes human rights, threatens democracy, (…) destabilizes legitimately constituted governments and (…) undermines pluralistic civil society.” In order to counter these threats, States have increased their security and developed new and advanced forms of surveillance.
The systems in charge of processing this information have evolved to the point that they are now analyzing and identifying “suspicious behavior” and “hostile intents,” as expressed by the Council of Europe. Reports argue that this data, combined with other databases, “creates a (…) detailed picture of our lives and interests, cultural, religious and political affiliations, financial, and medical aspects.” Thus, possible “targets” and “suspects” are presented to security authorities, and are subsequently secretly monitored.
Since these actions imply the State collecting and processing personal data, the right to privacy is not only being limited, but violated. Yet, organizations have assured that it is feasible and necessary for States “to protect their populations against possible terrorist attacks” while “respecting human rights, the rule of law and (…) international humanitarian law.” This prompts an important question: how can States accomplish what appears to be such a difficult task?
Firstly, although the European Court of Human Rights (ECHR) has accepted that this practice “over the mail, post and telecommunications is (…) necessary in a democratic society in the interests of national security,” it has also assured that it must be lawfully carried out by a public authority “under exceptional conditions,” since surveillance measures interfere with the right to privacy.
The Court also affirmed that, in the fight against terrorism, States cannot “adopt whatever measures they deem appropriate,” and do not “enjoy unlimited discretion to subject individuals to secret surveillance or a system of secret files,” and their margin of appreciation is limited and must be accompanied by national and European supervision.
Secondly, as former European Commissioner for Migration, Home Affairs and Citizenship, Dimitris Avramopoulos, stated: “there can be no security without freedom, and at the same time, there can be no freedom without security.” Yet, as argued by the Council of Europe, sometimes, “freedom is being given up without gaining security.”
Since these are both fundamental values of democratic societies, they need to be respected and there should always be a balance grounded in proper legislation. Finally, controls over privacy need to be kept in check in order to avoid authoritarian tendencies from States or data misuse by private companies. In a strong democracy, citizens should have the power over their personal data.