“The Global Panopticon”: Mass Surveillance and Data Privacy Intrusion as a Crime against Humanity?

in Justice Without Borders
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This paper will argue that data collection and (ab-)use these days are endemic and occur in a widespread and systematic manner and more often than not based on the policy of governments or – increasingly – of big multinational it companies and networks such as Google, Facebook etc. It will posit that they affect mainly civilians on a grand scale, whether for discriminatory reasons or simply indiscriminately, and have the potential for seriously violating some fundamental human rights, namely the rights to privacy and as a knock-on effect, the rights to freedom of speech and freedom of belief. The practice of such wholesale data gathering has thus all the hallmarks for being a contender to a new category of crime against humanity (cah). Traditionally, cah and other international crimes have been focussing either on, firstly, distinct violations of certain rules applicable to the conduct of armed hostilities, or, secondly, on physical or mental harm or damage, i.e. violations of the body, the mind or of property in the wider sense, as the basis for criminal liability, even if the means used to bring about such consequences are situated in cyber space, i.e. through cyber warfare. Most often, those two categories overlap to a large extent but not necessarily, since some of the rules of warfare are intended to provide for a degree of control over the conduct of military actions purely in the interest of allowing for the chance of a resumption of peaceful relations between the parties after a conflict has ended, and hence of maintaining a minimum standard of humane conditions during such conflicts, if that can be said to be a realistic option at all. The protection of the symbols of the Red Cross and Red Crescent is one example. However, with the rapid development of information technology and its virtually unchecked use for unilateral or multilateral intelligence gathering purposes by many governments and major corporations, a new victim may finally have appeared on the scene, namely the above-mentioned bundle of fundamental political rights, the free exercise of which is a non-negotiable and crucial component of the democratic process. In other words, the violation of these rights may no longer be a mere tool in order to violate the traditional target rights related to physical and mental well-being, but represent a violation of a distinct new target right in and of itself.

Justice Without Borders

Essays in Honour of Wolfgang Schombourg

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