Nora Ni Loideain

Surveillance of Communications Data and Article 8 of the European Convention on Human Rights

Article 8 of the European Convention on Human Rights guarantees respect for private life and correspondence, a guarantee that is increasingly challenged by developments in telecommunications technology. This chapter is a critique of the approach of the Strasbourg Court in its application of Article 8 and the surveillance of communications data by law enforcement authorities. First, greater scrutiny needs to be exercised so that Convention safeguards are applied strictly and consistently regardless of whether the interference concerns the surveillance of content, e.g., telephone tapping, or communications data, e.g., the location, frequency, participants of a communication. Secondly, the Court needs to consider the level of intrusiveness to an individual’s private life that the monitoring of communications data now poses in light of regulatory developments and the technological advances brought about by digitization and the Internet in its application of the necessity and proportionality requirements under Article 8(2). Otherwise, the Court’s approach to communications data will fall so far behind these changes that the standard of protection provided under the Convention risks becoming more illusory than real.