CHAPTER 5: LEGAL CONSTRAINTS
citizenship as in the United States, are unlawful. He stated that Article 26 of the
ICCPR, prohibiting discrimination, requires all States “to afford the same privacy
protection for nationals and non-nationals and for those within and outside their
jurisdiction” (para 62). If so, the ICCPR may impose more onerous obligations than
the ECHR, which protects only those within the jurisdiction of its contracting States,
including areas outside their borders over which they have effective control.
5.91.
105
Both the Human Rights Commissioner and the Special Rapporteur were extremely
wary of bulk data collection, and emphasised the difficulties in justifying wide-ranging
intrusions into privacy. Like the European Courts, however, neither went so far as to
suggest that it was inherently incapable of justification, given sufficient and effective
safeguards.105
Emmerson suggested that the justification would have to be “compelling”: ibid., para 9. Pillay sounded
a similar note, arguing that stronger and more robust procedural safeguards are required to prevent
arbitrary interference with the right to privacy: The right to privacy in the digital age, (June 2014),
A/HRC/37, para 15. On the other hand, she did suggest that mandatory data retention “appears
neither necessary nor proportionate”: para 26.
94