Valsamis Mitsilegas and Niovi Vavoula talk to us about their new edited volume published by Hart.
This volume aims to critically analyse the evolution and proliferation of surveillance paradigms in the digital age and their impact on the protection of fundamental rights, particularly the rights to respect for private life and personal data protection, from a European, transatlantic and global perspective. In an ever changing landscape, whereby national and regional legislatures over-rely on modern technologies to ‘greedily’ collect and further process large amounts of personal data often with the co-option of the private sector, monitoring the impact of legislative initiatives is a challenge. This book discusses cutting-edge issues underpinning the transformation of surveillance in the digital age, such as the ongoing data on the mass surveillance of telecommunications metadata, the possibility of law enforcement authorities to directly request e-evidence from private parties without judicial authorisation and the interoperability of information systems for immigration control and security. Questions on the relationship between surveillance and privacy and other fundamental rights underpin all chapters in this volume, and are the focus of the final part of the book. The volume is also, we believe, a key contribution in identifying major trends and long-term effects in the transformation of this relationship.
This book is the outcome of the Annual Conference of the European Criminal Law Academic Network (ECLAN) on ‘Privacy and Surveillance in the Digital Era’, which was organised by the Criminal Justice Centre on 17-18 May 2018. The Criminal Justice Centre is leading the work of ECLAN, which a transnational network of researchers and academics engaging in EU criminal law aiming at developing academic research and training in this field by facilitating collaborations and synergies between universities and research centres. The conference and the edited volume brought together leading experts from both sides of the Atlantic as well as China to compare views and draw similarities and differences in the approaches, all reaching similar conclusions from different standpoints about the challenges that modern surveillance practices pose to privacy protection and the need for higher and clearer safeguards.
There is a growing literature on the rise of the ‘surveillance society’, but the key strengths of this edited volume are its conscious comparative and transnational focus and its topicality, which enable the reader to obtain a holistic perspective on the most recent surveillance practices and the available legal tools to enhance and enforce high privacy standards and its topicality. The book, which reflects our expertise and interest in the field of surveillance and privacy, is published in the Hart Studies on European Criminal law series, an innovative series leading in the shaping of European Criminal law as a distinct academic field.
Four key dimensions emerge [in the content of the volume]: digitalisation, privatisation, de-politicisation/de-legalisation and globalisation. In terms of digitalisation, contributions explore the legal and policy demands that recourse to the specificity of ‘the digital’ has imposed. The first part of the volume is devoted to complementary analyses of EU and US-led initiatives on e- or digital evidence, based on the assumption that ‘the digital’ requires additional speed in co-operation and that the current judicial co-operation and mutual legal assistance mechanisms are not adequate to address the digital phenomenon. The chapters in this volume demonstrate clearly the challenges that this approach entails for the protection of fundamental rights, in particular via the effort to do away with the layer of judicial authorisation and independent fundamental rights scrutiny in the context of co-operation and to establish more direct public-private avenues of co-operation. But the impact of ‘the digital’ and the uncritical faith in technology on fundamental rights is also present in a number of other chapters on private and public surveillance and interoperability. In terms of privatisation, a number of contributions in the volume place emphasis on changing demands and expectations placed on the private sector to co-operate with the state in order to provide security in the digital era. Private providers are placed in this context in an uncomfortable position and under conflicting legal duties, to collect and provide a wide range of every day personal data to state authorities on the one hand, while respecting fundamental rights on the other. Questions of legal certainty and the intensity and breadth of obligations to be imposed on the private sector are critically evaluated.
These questions are lined with the third over-arching dimension of this volume, focusing on de-politicisation and de-legalisation. It is not uncommon for surveillance to be conducted in secret, or under elliptical legal rules which are inadequate to challenge executive power and to provide effective fundamental rights protection. In the digital age, these concerns are exacerbated by the evolution of surveillance via privatisation and via the framing of surveillance as a technical, and not as a legal or political issue- reliance on algorithms or on concepts such as interoperability are key examples in this context. A number of chapters highlight these challenges and the potential for surveillance in the digital age to take place in a de-politicised, de-legalised context- with the challenge for legislators and courts being to bring this surveillance framework within the rule of law and democratic scrutiny. The final over-arching analytical dimension, permeating the volume, involves the question of applicable law in a globalised digital world. With digital giants being multinationals operating under different legal personalities in different jurisdictions, and with the digital age enabling and requiring transnational and trans-jurisdictional data flows, including data flows in the Cloud, the question of applicable law-including both standards of surveillance and fundamental rights benchmarks- remains relevant and contested. The volume provides a wealth of analysis on the relationship between legal orders- between the EU and Member States; between the EU and the US; between the EU and the ECHR to name but a few-and develops critical insights on the future and feasibility of a global level-playing field on surveillance and privacy in the digital age.