From: OUPBlog/Oxford University Press
By Christopher Kuner
Widespread Internet surveillance by governments, whether carried out directly or by accessing private-sector databases, is a major threat to the data protection and privacy rights of individuals. It seems that in some countries (such as the United States), the national security state is out of control. This has led to proposals to require that the Internet data of individuals be stored within their own national borders, or even to re-engineer the technical infrastructure of the Internet to store data locally.
As I warned, requiring local data storage would undermine, rather than strengthen, fundamental rights by making it easier for intelligence services to access data locally and then share them with other countries. For example, it seems that the French intelligence services conduct widespread Internet surveillance in France and share the data they collect with the United States, so it is not clear what the privacy benefit would be of requiring data to be stored in France. Computer science experts have also stated that requiring data to be stored in country would be largely ineffective in protecting against foreign surveillance.
Proposals to limit transborder data flows under the proposed EU General Data Protection Regulation would have no effect on data processing by the intelligence services, as that instrument does not even apply to data processed for ‘national security’ purposes (under Article 4 of the Treaty on European Union, national security remains the ‘sole responsibility’ of the Member States).
Nor does human rights law necessarily require local data storage. The UN’s International Covenant on Civil and Political Rights (ICCPR) protects both privacy (Article 17), and freedom of expression ‘regardless of frontiers’ (Article 19), which rights must be balanced based on the principle of proportionality. Requiring local data storage only strengthens the authority of national intelligence services and their ability to collect data locally, and limits the possibility to communicate across borders, without having any specific benefit for privacy.
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