Data protection and migration: balancing state interests and individual rights
Date
2015-02-23
Authors
Martens, Ruzayda
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Abstract
The globalization of irregular migration and its facilitation by transnational criminal
groups, coupled with concerns of terrorism, has radically impacted the way in which
States manage migration and national security. At the same time, the information age
has placed the issue of privacy and confidentiality at the centre of public, legislative
and media debates. While advanced technology facilitates migration management and
data exchange, the emergent use of surveillance techniques to identify individuals and
keep track of their movements is a growing concern. Advanced technology can help to
protect and manage borders, but it can also threaten human rights and create
vulnerabilities relating to data theft, data loss, inappropriate disclosure and misuse of
personal data. In the absence of appropriate data protection safeguards, personal data
can be used for reasons unrelated to its intended purpose, without the knowledge of
the individuals concerned and contrary to their expectations. When applied to
migrants, data protection has a cross-border dimension, and this gives rise to
additional concerns related to unauthorized disclosure that could lead to a multitude of
risks ranging from physical violence to profiling and discrimination.
This thesis seeks to outline the points of intersection between data protection and
migration. In so doing, it points out the important consideration of the threat to human
life and safety, a practical reality when collecting and processing personal data of
vulnerable migrants. States have an obligation to protect the human rights afforded to
all individuals, regardless of their nationality or immigration status. States also have
the sovereign right to protect their borders and the duty to keep their citizens secure.
While acknowledging the delicate exercise of having to balance between protecting
State interests and respecting individual rights, this thesis emphasizes that the two are
not mutually exclusive and it can be balanced, albeit a delicate balance. To ensure an
appropriate balance, individual rights should not be diluted or subjugated by the
interests of States. Instead any restrictions to privacy and data protection should be
justified and proportional to the state interest. Further, the parameters for using
advanced technology should be firmly embedded in the law. Finally, as technology is
not infallible and cannot be seen in isolation, the human factor is a key consideration
to take into account when developing and implementing the law governing the use of
advanced technology that may impact on individual rights.
Description
Thesis (L.L.M. (Dissertation))--University of the Witwatersrand, Faculty of Commerce, Law and Management, School of Law, 2014.