1. Is the Human Rights framework still fit for the Big Data era?
Bart van der Sloot
Institute for Information Law, UvA
Amsterdam Platform for Privacy Research
Scientific Council for Governmental Policy

2. Overview
Human rights, in particular the right to privacy, under the ECHR
Big Data/mass surveillance
The ECtHR’s approach to Big Data/mass surveillance
Is the Human Rights framework still fit for the Big Data era?

3. (1) Human Rights: privacy
ARTICLE 8 Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

4. (1) Human Rights: privacy
(A) Individual right (subjective right of natural persons)
ECtHR rejects: Class action/actio popularis
ECtHR rejects: Legal persons as claimants
(B) Individual interest
ECtHR rejects: In abstracto claims
ECtHR rejects: A-priori cases
ECtHR rejects: Hypothetical complaints
ECtHR rejects: claims about minimal harm (De minimis rule)
ECtHR rejects: claims about societal interests > only individual interests: autonomy, freedom, dignity
(C) Balancing of interests
ECtHR approaches privacy and societal interests as relative
Those interests are balanced and wheighed in concrete cases

5. (2) Big Data/mass surveillance
Gathering mass data about unidentified people
Without any preestablished goal > looking afterwards for statistical correlations
Aggregated data and group profiles
Used for general policies

6. (2) Big Data/mass surveillance
(A) Claiming individual right is increasingly problematic
Unaware
Undoable
(B) Specifying an individual interest is increasingly problematic
Individual interest abstract and vague
Rather at stake seem societal/group interests
(C) Balancing interests is increasingly problematic
Both interests are vague and abstract
There also seem non-relative interests at stake

7. (3) The ECtHR’s approach to Big Data/mass surveillance
The ECtHR leaves its own focus on individual rights and personal interests in order to be able to assess cases concerning mass suveillance under Article 8 ECHR:
In those cases specifically it does accept:
Hypothetical complaints: reasonable likelihood
A-Priori cases: chilling effect
In abstracto claims: the mere existence of a law
Legal persons as claimants
Class actions
Societal interest
And does not engage in a balancing of interests, but uses a mere legal test – is the mass surveillance program prescribed by law?

8. (3) The ECtHR’s approach to Big Data/mass surveillance
In these types of cases, what is at stake is:
Not an individual right, but a general right
Not an individual interest, but a general interest
Not a balancing of interests, but a pure legal assessement

9. (4) Is the Human Rights framework still fit for the Big Data era?
Big Data Problems: exist at a general level, affect societal interests and are based on aggregated data, statistical correlations and group profiles and are used for general policies ↕
Human Rights: are formulated as subjective rights of natural persons to protect their individual interests/personal data/focus on indivdiual harm