The Human Right to Privacy in the Digital Age

Article 17 of the International Covenant on Civil and Political Rights (ICCPR) protects everyone from arbitrary or unlawful interferences with their “privacy, family, home or correspondence.” The international human rights community has begun the process of responding to the erosion of privacy rights that new technologies have facilitated. This report recommends that the U.N. Human Rights Committee assist in this process by issuing a new General Comment on the right to privacy under Article 17 of the ICCPR.

Since the ICCPR came into force in 1976, new information technologies have emerged, and both governments and private companies have at times employed them outside of any legal framework and without regard to individual privacy. In the wake of Edward Snowden’s leaks, lawyers and commentators have recognized that while surveillance and information technologies have developed rapidly, the law of privacy has not kept pace with these changes. Although privacy law, at the international human rights level, is grounded in robust and pedigreed principles, it seems not to have been developed or adapted to fit the needs of 21st century society. To take just a few examples, the committee’s original General Comment on privacy, published in 1988, did not anticipate the development of new forms of communication like email and texting, the emergence of government capacities to intercept and process large quantities of electronic data, or the explosion of social media websites.

General Comments serve an important function. They elaborate on, and develop, open-textured rights language; they collate jurisprudence on a right; and they clarify the application of a right to specific contexts. They ensure that the treaty monitoring body properly and consistently interprets the right in its practice of reviewing individual petitions and country reports. General Comments also provide a framework that allows countries to ensure their compliance with protected rights.