Surveillance has become a ubiquitous part of people's lives; it takes any number of forms, but the surveillance state exists wherever governments do. Part of the national security law passed by China towards the end of June 2020 codified and expanded the Chinese government's ability to massively surveil the citizens of Hong Kong in order to halt political subversion. In the United States, corporations and industry organizations--including the Chamber of Commerce--have urged the federal government to expand its use of facial recognition technology as a tool for policing, border security, and more. The Israeli government's response to COVID-19 includes a provision granting the country's internal security agency the power to monitor and collect cell phone location data. On a global scale, responses to the coronavirus are accelerating the expansion of the surveillance state, particularly as a tool for authoritarian regimes.
Currently, domestic surveillance law is under the purview of individual nations. But national borders cannot neatly confine the modern surveillance state as a domestic issue. Cross-border surveillance--when nations surveil individuals in other countries--is becoming increasingly prevalent, and laws controlling it have not kept up. Many countries simply have no restrictions on entities conducting electronic surveillance outside their borders. In contrast, the United States has specific legal frameworks regarding cross-border surveillance. And in the most extreme instances, the governments of multiple nations collaborate to conduct cross-border surveillance, as the intelligence agencies of the United States, United Kingdom, Canada, Australia, and New Zealand did with Project Echelon, "a global system for the interception of private and commercial communications."
Unfettered international surveillance creates an array of issues, from invading intellectual privacy to distorting power relationships between state and citizen to accelerating discrimination and human rights abuses. The surveillance state is ubiquitous and increasingly transnational, so the realm of international law presents an opportunity to build a theoretical framework for at least protecting the human rights and privacy of non-citizens from foreign surveillance. Considering and implementing this framework is a necessary first step in the path to a universal reduction in surveillance for all people in all nations.
The Potential of International Law
While the origins of global surveillance reach back to intelligence sharing between Allied Powers' armed forces during the Second World War, in recent decades, technology has increased the capacity of nations to conduct widespread surveillance due to the rise of mobile phones and the internet. The public's awareness of this issue dramatically rose with Edward Snowden's 2013 leaks unveiling illegal surveillance conducted by the United States' National Security Agency (NSA) and other...