Protecting the right to privacy in the fight against terrorism

The right to privacy is an integral part of the right to respect for private life, as guaranteed by Article 8 of the European Convention on Human Rights: it also encompasses a more special right, usually referred to in terms of “data protection”. This special right does not only concern protecting individuals from intrusions into their privacy or private life, but also more broadly is about guarding against the improper collecting, storing, sharing and use of their data. It addresses the central issue in the “information society” of the extent of control by data controllers over individuals –tellingly referred to as “data subjects” - through possession of their data. The increasing importance given to this right is reflected in the case-law of both the European Court of Human Rights and the European Court of Justice.

In spite of the great attention given to terrorism, especially after “9/11”, a precise definition of terrorism has still not been universally agreed upon. This is perhaps because universal consensus cannot be reached on what constitutes a terrorist and what a freedom fighter. The EU has said that 'terrorism', comprises: “[the threat or act of] seriously intimidating a population, unduly compelling a Government or international organisation to perform or abstain from performing any act, or seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation"

Yet, neither the 1977 European Convention on the Suppression of Terrorism, nor the 1997 UN International Convention for the Suppression of Terrorist Bombings defines the word “terrorism”. Nor has the UN Security Council adopted a definition, despite the fact that it mandates punitive actions against (suspected) “terrorists”.

Terrorism, however defined, is not a passing phenomenon. While wars or other public emergencies generally have a more or less clear end (even if this can be much delayed), there is no end in sight to the fight against global terrorism. Even at the national level, anti-terrorism legislation tends to become semi-permanent.

Terrorism, and measures against terrorism, therefore pose a long-term, engrained threat to the fundamental values of the Council of Europe and its Member States. One particular area at risk concerns the collection, storage, analysis, sharing and use of personal data. Data protection is often seen as an obstacle to effective anti-terrorist measures - and thus as a prime area in which basic international commitments are ignored. Yet data protection is crucial to the upholding of fundamental democratic values. It is this tension between strong opposing forces, the desire to prevent terrorism and the importance of protecting human rights, that makes this a matter of pressing concern. The Council of Europe and the European Union have recently agreed to promote their co-operation, inter alia, in relation to “combating terrorism, organised crime, corruption, money laundering and other modern challenges, including those arising from the development of new technologies.”

The Commissioner for Human Rights is among those who are “especially invited” to participate in this enhanced cooperation. Human rights issues arising from policies relating to privacy and the fight against terrorism, and indeed from more general policies on information technologies, are therefore of interest to him.

Abstract:

The issues addressed in this paper are placed in a highly sensitive, yet ill-defined context.
They touch, on the one hand, fundamental values of a democratic society, raising serious constitutional questions in many States. On the other hand, they relate to a phenomenon - terrorism - in response to which States feel entitled, even obliged, to take the most drastic action.