Privacy and the Legalization of Mass Surveillance : In Search of a Second Wind for International Human Rights Law

This paper revisits the traditional trade-off between privacy and security, which underpins the compatibility of general and indiscriminate mass surveillance with international human rights instruments, and extends the orthodox patterns of legal argumentation using interdisciplinary knowledge, which is able to nurture, and to be translated into, the language of International Human Rights Law. In search of new resources and a second wind for the overburdened legal concept of privacy, this research combines a positivistic legal perspective with knowledge from sociologically framed surveillance studies, political theory, behavioral economics, and computer science, and deals with the threats and responses thereto from this epistemological standpoint.The first of three threats singled out in the paper—the ‘securitization’ of the danger of terrorism—is treated through embedding the effectiveness of predictive algorithms to the proportionality test. A consensus of ‘Big Brothers’ to use mass surveillance tools as the second threat is considered using constitutional theory and the bridge of the ‘democratic society’ component included in some international human rights instruments to transpose issues of fair representation to the standard of review. The third threat is the shift of social norms towards the permissibility of being watched. Resources to cope with this challenge can be found in the complementation of an individual reading of privacy as a right and a value by a collective one, which follows a primarily socio-economic trend to consider privacy as a public good