Keywords
transnational cyber surveillance, domestic surveillance
Abstract
In this essay, I question the appropriateness of applying the substantive requirements of lawful domestic surveillance developed from international human rights treaties and relevant case law to transnational cyber surveillance. And I argue in the negative. Therefore, for the purpose of this essay, I would not delve into the highly debatable issue of what counts as ‘‘control” in cyber surveillance and which standard of control triggers a state’s jurisdiction. Instead, this essay assumes that a control test was established. In the following section, I shall examine the substantive requirements for states restricting fundamental freedoms drawn on from current human rights case law. And I shall demonstrate why these tests, which are designed for internal surveillance, will be problematic if applied to foreign cyber surveillance. My approach is territorial. And the core of the problems, I argue, is that the legal and political implications of territory and border, as currently understood, cannot provide a satisfying theoretical basis for expanding states’ regulatory power extraterritorially. I understand that my territorial approach may be considered very conservative, or Westphalian, and therefore, I would address some potential responses to my arguments in the conclusion.
Recommended Citation
Wanshu Cong, "A Critical Assessment on the Extraterritorial Application of Human Rights Treaties to Transnational Cyber Surveillance" (2017) 15:1 CJLT.
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Computer Law Commons, Intellectual Property Law Commons, Internet Law Commons, Privacy Law Commons, Science and Technology Law Commons