Spionage im Zeitalter von Big Data – Globale Überwachung und der Schutz der Privatsphäre im Völkerrecht

The revelations prompted by Edward Snowden about mass surveillance by the NSA, GCHQ and other intelligence services of the so-called Five-Eyes states (United States, United Kingdom, Australia, Canada and New Zealand) have triggered a lively debate about the framework for espionage activities in contemporary international law. The different facets of the various activities of surveillance make it impossible to arrive at an overriding and general legal assessment of whether the activities of the Five-Eyes states are lawful as such. However, different aspects of foreign surveillance activities can be assessed in the light of international law. On a general level, the article makes two claims: first, it argues that the rise of what can be called »big data« fundamentally challenges traditional notions of the protection of data and privacy. Second, the surveillance activities of NSA, GCHQ and other services are a consequence of the geopolitical changes of the last decade. Whereas espionage was traditionally seen as an inter-state phenomenon with limited (if at all) human rights implications, the turn to non-state actors as central threats in todays world has brought wide parts of the world population into the focus of intelligence agencies. With these observations in mind, the article first assesses the legal rules for espionage in international law in general as well as particular rules which might apply to the legal situation in Germany. General international law knows no prohibition of espionage as such. At the same time, states are free to punish spies. In addition, specific acts of espionage may violate rules of international law such as the principle of territorial integrity and the principle of non-intervention. Limits may also flow from the legal rules pertaining to diplomatic and consular relations. In a second step, the barely existing international rules on data protection are presented before the article turns, in a third step, to the field of human rights law. With respect to the protection of privacy against surveillance measures it needs to be assessed, first, whether the relevant human rights agreements such as the European Convention on Human Rights and the International Covenant on Civil and Political Rights apply extraterritorially as some parts of the global surveillance activities have arguably taken place outside of the respective states territories or produce effects abroad. After surveying the various issues raised in this context, the article proposes a framework for determining whether surveillance measures constitute an exercise of jurisdiction in the sense of the human rights treaties. Finally, the substantive standards of protection are assessed.

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