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Peter Margulies

Abstract

ISIS’s cultivation of social media has reinforced states’ interest in using automated surveillance. However, automated surveillance using artificial intelligence (“machine learning”) techniques has also sharpened privacy concerns that have been acute since Edward Snowden’s disclosures. This Article examines machine-based surveillance by the NSA and other intelligence agencies through the prism of international human rights.

Two camps have clashed on the human rights implications of machine surveillance abroad. The state-centric camp argues that human rights agreements like the International Covenant on Civil and Political Rights (ICCPR) do not apply extraterritorially. Moreover, the state-centric camp insists, machine surveillance is inherently unintrusive, like a dog seeing a human step out of the shower. Surveillance critics respond that machine and human access to data are equivalent invasions of privacy and legal protections must be equal for individuals within a state’s borders and nonnationals overseas. In a controversial recent decision, Schrems v. Data Protection Commissioner, the European Court of Justice appeared to side with surveillance’s critics.

This Article argues that both the state-centric and critical positions are flawed. This Article agrees with surveillance critics that the ICCPR applies extraterritorially. Machine access to data can cause both ontological harm, stemming from individuals’ loss of spontaneity, and consequential harm, stemming from errors that machines compound in databases such as no-fly lists. However, the Schrems decision went too far by failing to acknowledge that human rights law provides states with a measure of deference in confronting threats such as ISIS. Deference on overseas surveillance is particularly appropriate given U.N. Security Council resolutions urging states to deny terrorists safe havens. But deference cannot be absolute. To provide appropriate safeguards, this Article recommends that machine searches abroad be tailored to compelling state purposes, scientifically validated, and subject to independent review.

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