In our modern surveillance society, the proportionality principle is now more important than ever. Mass surveillance is now a part of our economic, political and social lives; companies and governments snoop on us like never before. Indeed, our telephones are tapped; our emails are monitored; our streets, shops and businesses are watched  with surveillance cameras; and our personal data that traverses the Internet and telephone system are intercepted and analyzed. What are the reasons for the mass surveillance carried out by governments and companies? There are several reasons for mass surveillance. The common reasons can be listed as follows: fighting terrorism, preventing crime and social unrest, protecting national security, and control the population and commercial purposes.

Practices involving the characteristics of a surveillance society, generally, appear in three areas:

First of all, surveillance practices are developed against global terrorist acts and for national interests and put into practice by completely ignoring personal privacy. Many ‘hard’ and ‘soft’ security strategies have been introduced by various legislations —e.g. the Patriot Act of the US—  to enable more intensive surveillance and control of the movement of ‘suspect populations’ since 11 September 2001. 

Photograph By Toby Smith

Secondly, administrative structure and management style gradually gain a virtual meaning in line with information technologies and the acceptance of the electronic state as a new trend. Indeed, citizens became to make many transactions through electronic state platforms. For example, certain services provided in this context in Turkey are as follows: “Social security documents, forensic clearance, address documents, tax debts, traffic bills, mobile telephone number checks, deeds and student documents”. Besides all these, the digital surveillance policies of Turkey has been shaped especially with the last decade issues. These include the 2013 Gezi protests, the country’s increasing participation in the Syrian Civil War and the ensuing influx of refugees, and successive terrorist attacks. 

Third, after the technology-enabled innovation in financial services, consumption comes to the forefront in the marketing system and consequently, consumer behaviors are scrutinized and closely monitored. Majority of private companies create vast profiles of behaviors and interests for each user, which they then use to guide them to the most monetizable behaviors. 

Finally, we can add one more reason due to the recent COVID-19 outbreak: “Protecting the public health”. It is true that  the COVID-19 Contact-Tracing Apps helps halt the virus’ spread. Digital rights advocates and privacy experts have some concerns about the hasty measures taken to track infections due to the possibility of digital rights violations. There different methods to collect data during the COVID-19 pandemic. According to a report released by Amnesty’s Security Lab, the contact tracing app of Bahrain, Kuwait and Norway stood out as among the most alarming mass surveillance tools assessed. By frequently uploading GPS coordinates to a central server, they actively monitor users’ locations by live or near-live tracking. However, these countries can allow users to voluntarily record or check their symptoms rather doing digital contact tracing as is seen in Lebanon. 

In short, we rush towards an ever more Orwellian dystopian world. Mass surveillance activities not only violate the principle of proportionality but also the right to private life and family life, and the right to protection of personal data. At this point, the principle of proportionality, which is the general principle of law, helps us to save our rights against both governments and companies. 

The principle of proportionality means establishing a reasonable balance between data processing and the intended purpose. Accordingly, the principle of proportionality requires as possible as minimisation of the data collected. The proportionality principle is comprising three sub-principles: the principle of suitability, necessity, and proportionality in the narrower sense. According to the suitability sub-principle, the measure applied should be adequate and suitable for the aim to be achieved. The necessity sub-principle implies the need for a combined, fact-based assessment of the effectiveness of the measure for the objective pursued and of whether it is less intrusive compared to other options for achieving the same goal.  Lastly, the principle of proportionality in the strict sense of the word establishes a balance between the extent and nature of the interference and the reasons for interfering (the needs). 

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Developments in the field of technology that are increasing exponentially with each passing day imprison individuals in a circle that is getting narrower. Even though we have rights defined by laws, governments and companies could attempt to bypass the law for various reasons. Therefore, it is important to apply a fair balance test before the mass surveillance practices in accordance with both the proportionality principle and protection of personal data. As is seen in Article 5(1) of Convention 108+ :

Data processing shall be proportionate in relation to the legitimate purpose pursued and reflect at all stages of the processing a fair balance between all interests concerned, whether public or private, and the rights and freedoms at stake.

Accordingly, either government agencies or companies need to pay attention that the intended benefit with the measure pursued should outweigh the harm done to the infringed principle. 

Recently, the principle of proportionality was also subject to a decision (Cases C-623/17) of the European Court of Justice (CJEU). The CJEU ruled the legislation of the UK was illegal because it allowed “general and indiscriminate” transmission or retention of electronic communications. The ruling is significant because it directly addresses the issue of national security and states categorically that EU privacy laws still apply in such circumstances, almost always. In other words, Member States cannot be able to bypass the law for only the reason that the national security anymore. The CJEU still accepts two exceptions: “A current and foreseeable serious threat to national security, and combating serious crimes and preventing serious threats to public security”. Moreover, the CJEU mentioned that:

In order to satisfy the requirement of proportionality, the legislation must lay down clear and precise rules governing the scope and application of the measure in question and imposing minimum safeguards, so that the persons whose personal data is affected have sufficient guarantees that data will be effectively protected against the risk of abuse.

Today, it is not possible that neither of mass internet surveillance being accepted by everyone nor of being abandoned by the authorities in any modern state. However , we  do not have to abandon the surveillance technology at all due to several advantages of it such as providing security, reduction in crime, and more effective treatment of pandemics. However, when considering of the disadvantages of surveillance technology, the principle of proportionality is crucial as it strikes a balance between adverse interests.  If the large-scale collection and processing of personal information under the mass surveillance practices would be applied, it should be necessary and proportionate. There are, also, various rights that prevent the mass surveillance practices of the government agencies and companies such as the right to respect private and family life, freedom of expression, right to the protection of personal data. Otherwise, expecting us to forsake our rights with very general and abstract expressions would be a dystopian nightmare.