Challenging inter-state breaches of privacy

Challenging inter-state breaches of privacy

Will the recent US spying revelations force the EU to strengthen its data protection law? Rosemary Jay examines the debate surrounding reform and highlights the challenges involved in taking legal action for inter-state breach of privacy.

Are there any international agreements defining the rules of international snooping?

The term ‘international snooping’ covers a potentially wide range of activities. The most obvious meaning is the interception of communications taking place in one jurisdiction by an agency (usually a security agency) of another state. The two main questions are:

  • whether the interception itself is unlawful, and
  • whether the identity and intention of the party doing the interception is an additional factor

As an example, it would be unlawful in the UK for a wife to tap her husband’s phone via the public network but it would not amount to espionage or spying. State espionage (as opposed to industrial espionage) is used to describe the situation when an agent of one state clandestinely obtains secret information about another state or the activities of another state with some element of intent to cause detriment. Espionage of this type is usually a crime under a country’s own law but there is no international treaty or agreement banning such espionage. Press reports since the allegations that US agencies listened to the German Chancellor’s calls have described a no-spying agreement between the UK, US, Australia, Canada and New Zealand. However, assuming that those reports are correct, this agreement is not contained in a formal, publicly available international treaty.

It appears therefore that there may be some agreements between some states restricting such activities but these do not take the form of published formal treaties.

Could actions be brought by individuals of one state for breach of privacy by another?

Like laws against espionage, privacy laws and laws against interception of communications are different in different countries. Again, there are several questions:

  • what form of legal action, if any, could a victim take?
  • could a victim take action against a perpetrator based outside its own territory?
  • if that is possible, could such an action be taken or enforced against a state or a state agency?

An individual is not likely to be able to bring criminal charges as, in many countries, these can only be brought by public prosecutors. Even in countries such as the UK where private prosecutions can be brought for some offences, these are not

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