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This commentary focuses on the United Nations General Assembly's Resolution 68/167 on the right to privacy in the digital age and continuing developments in this area. The key questions I explore are whether such developments are welcome, and whether human rights law is being used in a meaningful way in the face of complex technological change and our fears regarding the reality of mass surveillance and big data analytics. To do so I offer commentary and critique of the present articulation of a right to privacy in the digital age and consider broader theoretical and doctrinal difficulties associated with privacy. The idea of digital privacy connects with a broader project--the digital rights movement--and engages questions regarding the translation of human rights into digital contexts. The commentary moves to consider the work of Marko Milanovic and Fleur Johns to illuminate the tensions and possibilities in this developing field. A right to digital privacy is one strategy to address concerns in the aftermath of the National Security Agency surveillance scandal, but ultimately a much larger question regarding liberty and collective political resistance is involved. CONTENTS I Introduction II A Right to Digital Privacy? III Further Developments IV Defining and Containing Privacy V The Internet and Privacy--New Means of Invasion and Old Forms of Regulation? VI Conclusion I INTRODUCTION In the wake of revelations that the United States and the United Kingdom had conducted mass surveillance programs of their own and others' citizens, and shared much of the data with select allies and cooperating intelligence agencies ('the Snowden revelations'), (1) it was reported that sales of George Orwell's classic examination of the surveillance state, 1984, had surged. (2) The Big Brother of science fiction had taken contemporary form and significance. Along with this literary revival, the response to the National Security Agency ('NSA') surveillance scandal has been accompanied by a renewal of interest in privacy as a human right. This prompts the question whether a right to privacy can help us analyse and regulate against the incursions on liberty which have been increasingly routinised in our daily ritual usage of information and communications technologies and in the harvesting, accumulation and analysis of big data by our governments, communities, corporate actors and employers. We used to think that Big Brother would always take the form of the state in Orwellian terms. Then slowly commentators pointed to the dangers posed by transnational actors and companies: why were we worried about our governments when our local supermarket or our internet service or phone provider held incredibly sensitive personal information about us? The Snowden revelations point to yet another variation on this theme: that public and private actors now both act in ways which are potentially invasive and detrimental to our liberty, and often do so together. This commentary focuses on the United Nations General Assembly's Resolution 68/167 on the right to privacy in the digital age, the issues arising from Resolution 68/167 and continuing developments in this area. (3) The key questions I explore are whether such developments are welcome, and whether human rights law is being used in a meaningful way in the face bf complex technological developments and our fears regarding the reality of mass surveillance and big data analytics. There are many ways in which these issues can be explored and this article aims to contribute to a deeper conversation within international law scholarship regarding 'digital privacy' and the translation of rights to 'online' contexts. I draw on some domestic developments where necessary, but do not seek to provide either a grand theory of digital privacy or a doctrinal analysis which holds the human rights line that there are laws X and Y and they have been violated in context Z. …
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