Digital surveillance and the right to privacy

The unprecedented growth of digital innovations within the twenty-first century has significantly shaped the way governance, communication, and daily living are conducted. This is because innovations like Artificial Intelligence (AI), biometric technology, as well as data analytics tools, while promoting security and efficiency, also reinforce concerns with respect to digital surveillance and right to privacy. The challenge of balancing between security and freedom has emerged as one of the key issues in debates on human rights within this context.

Notably, the scope of privacy has been broadened in the digital age to encompass the concerns of intrusion on physical privacy, informational privacy, and privacy relating to decision-making. It can be argued that the proliferation of the use of smartphones and other devices, such as wearable technology and smart systems, has made the users more susceptible to privacy concerns. The worst part of all these is that much of this happens in a passive and largely unsuspected manner.

Modern surveillance tools have become widespread and advanced. This is because biometric identification tools, facial recognition software, location monitoring, and mass data retention have made it possible for individuals to be continuously tracked and monitored. Certain state activities, such as creating massive biometric databases and monitoring systems, have been proposed and advertised to ensure national and internal security. Unfortunately, these activities have several implications for the existing privacy norms and standards. 

Alongside the state-controlled surveillance, there is this phenomenon of “surveillance capitalism,” whereby the data of private citizens is collected, analysed, and exploited for securitization, purposes of targeted advertising and the prediction of behaviour by for-profit companies. By such targeted advertisements and content moderation practices, the behavioural and even political opinions as well as actions can be influenced. The terms of privacy policies are also too complex and, to a certain extent, do not offer any alternatives to consent and are thus largely a mere formality.

Thus, a legal vacuum persists in all these respects. A majority of nations do not have a full code of practice in relation to data protection. Even where a code exists, in certain nations, the exemption provisions in regard to the nation’s security are typically opaque and unnecessarily broad. Additionally, the international movement of data makes the regulations difficult to implement.

The deeper significance of digital surveillance also lies within its ethical ramifications. When all citizens are under perpetual observation, a “chilling effect” on other fundamental rights is triggered that holds back active participation by citizens within a democratic setup. The worst victims of this are minorities, activists, and people with non-dominant opinions in societies.

To meet these demands, there needs to be a strong human rights-oriented regulatory framework in place. The regulation of surveillance should meet the principles of legality, in that laws should be clear, accessible, and narrowly tailored, have a legitimate aim, and be put in place as a last resort. Moreover, such actions should be proportionate, meaning that effects on human rights should be limited and should not last for too long. Strong mechanisms of accountability, such as independent oversight bodies, access to justice, and requirements of transparency and effective remedy, will also help ensure that the right to privacy is not undermined by invasive measures such as surveillance.

All in all, although national and cyber security are genuine matters of concern for states, the concern of individual liberty and privacy cannot be ignored. A careful balance needs to be struck to address both the concerns. 

Akash Ahmed

Law student, Bangladesh University of Professionals