Privacy and online surveillance: international legal challenges

Regulating online surveillance is one of the main challenges of the 21st century. The main goal of this thesis is to identify the different sources of conceptual confusion surrounding the legal discourse on online surveillance. There are two main aspects to the debate: one concerns privacy regulation, while the other focuses on surveillance regulation. Privacy has been qualified as “a concept in disarray”. If attempts to define the concept have generally not been successful, it is not surprising that the nature and scope of its correlated right have also been difficult to assess. How international law conceptualizes the right to privacy is an important issue when discussing online surveillance. In order to clarify the international conceptualization of the right to privacy, a comparative analysis of the privacy protections of the United States and France is conducted. Analysing how both these national traditions developed their legal apparatus to protect private interests highlights the different approaches (and consequently conceptualizations) to privacy regulation. Two paradigms can be identified: one refers to the value of ‘freedom’, the other to the notion of ‘control’. The existence of an ‘international human right to privacy’ is not contested but its exact content has however raised many questions. The second chapter explores whether a common conceptualization of the right to privacy exists in international law and if the paradigms identified at the domestic level can help clarify the ambiguous nature of international privacy protection. The field is further complexified by the appearance at the end of the 20th century of data protection frameworks. This legal field is muddled because of the vast amount of regulations, but also the multiple terminologies used to qualify its core principles. A comparative analysis of the European and US systems and their respective conceptualization of data protection is carried on. The nature of online surveillance activities also questions our understanding of current traditional frameworks. On one hand, cyberspace challenges the principles of jurisdiction under public international law and international human rights- specifically the territoriality principle. On the other hand, the silence of the international community on the legality of peacetime espionage and the difficulties to interpret the existing international provisions on privacy in the context of surveillance have also proven to be challenging. The international legal discourse on online surveillance regulation finds itself at the crossroad of different broader conceptual issues. These conceptual and normative challenges need to be straightforwardly addressed to understand how to effectively regulate surveillance and consequently enhance individuals’ enjoyment of their right to privacy