Security and Privacy in the Digital Era

"The state, that must eradicate all feelings of insecurity, even potential ones, has been caught in a spiral of exception, suspicion and oppression that may lead to a complete disappearance of liberties."
—Mireille Delmas Marty, Libertés et sûreté dans un monde dangereux, 2010

This book will examine the security/freedom duo in space and time with regards to electronic communications and technologies used in social control. It will follow a diachronic path from the relative balance between philosophy and human rights, very dear to Western civilization (at the end of the 20th Century), to the current situation, where there seems to be less freedom in terms of security to the point that some scholars have wondered whether privacy should be redefined in this era. The actors involved (the Western states, digital firms, human rights organizations etc.) have seen their roles impact the legal and political science fields.

Introduction vii

Part 1 Technology and Human Rights 1

Chapter 1. The Ideology of Human Rights 3

1.1. Constitutional Texts 3

1.2. Some texts have an international scope 8

1.3. European texts 16

Chapter 2. Protection of Personal Data 29

2.1. Convention 108 29

2.2. United Nations General Assembly Resolution 45/95 on December 14, 1990 31

2.3. Sources of EU law 32

Chapter 3. Telecommunication Interception 39

3.1. Jurisprudence of the EHCR 39

3.2. Interceptions in the United States 45

3.3. European states and interceptions 50

3.4. Interception controls 61

Chapter 4. Biometrics and Videosurveillance 69

4.1. Biometrics 69

4.2. Videosurveillance 80

Part 2 The Era of Surveillance and Control 89

Chapter 5. The Sources of Law in the Field of Security Illustrate This Change 91

5.1. The USA 91

5.2. The United Kingdom 95

5.3. France 99

Chapter 6. Interceptions 113

6.1. The United States of America 113

6.2. France 126

Chapter 7. Other Methods of Surveillance 135

7.1. Biometrics 135

7.2. Passenger name record 147

7.3. Data and files 151

7.4. New technologies; geolocation, body scanners, and drones are increasingly used 155

Part 3 Between Security and Freedom 179

Chapter 8. Towards Compromise 181

8.1. Legal measures have been taken in order to protect some fundamental freedoms 181

8.2. European jurisprudence 191

8.3. The monitoring continues to develop in the communications sector 223

Conclusion 241

Bibliography 249

Index 251

Claudine Guerrier is Professor of Law at the Institut Mines-Télécom and the Télécom Ecole de Management in Paris, France. Her research focuses on the tense relationship between technology, security and privacy.