More on the (Alleged) Global Right to Privacy

By Orin Kerr
Monday, December 2, 2013, 1:28 AM

Over at EJILTalk!,  Marko Milanovic has a five-part series considering the possibility of a global right to privacy against government surveillance   Milanovic's posts are in part a response to posts by Ben and me, so I thought I would  offer just two quick thoughts in response:

1) In response to Ben's question about what this right might actually look like, Milanovic answers with vague generalities.   He writes that this right should "look at the substance," "not impose unrealistic burdens and restrictions" be applied "flexibly" but not not "so flexibly that it ceases to have any impact or compromises the integrity of the whole regime," that the rights should be "reasonably clear and predictable," that the process of creating the right should "happen in an iterative process" with "dialogue,"  using "factors" such as "the type of data being collected, the purpose the data will be used for, the type and quality of oversight mechanisms, and the clarity and predictability of the legal framework," and drawing upon "domestic experiences and the already rich case law of national and international courts and human rights bodies."  I'm a criminal procedure professor, not an international law scholar, so maybe I'm just missing something.  But I don't see how these vague factors tell us anything about what this right is supposed to look like.

2) Milanovic ends his last post with what strikes me as a key difference.  No matter what this global right might look like,  Milanovic writes, it is "hard to dispute" that "some rights, some oversight, some accountability, are better than having no rights, no oversight, and no accountability."   But I think it's easy to dispute that point.  Legal restrictions are not always good.  Sometimes law can help.  But sometimes law can screw everything up.    In my view, it's impossible to know if a proposed law is better than no law if we don't know what the proposed law might look like.