Brooklyn Journal of International Law


Anna W. Chan

First Page



Technology has undoubtedly contributed to the field of human rights. Internet connection and a smartphone has enabled activists to call out political leaders, shine light on human atrocities and organize mass protests through social media platforms. This has resulted in many authoritarian governments spending large amounts of their resources to purchase cyber-surveillance spyware systems from multi-national corporations to closely monitor and track their citizens for any signs of dissidence. Such technology has enabled authoritarian regimes to commit human right violations ranging from invasion of privacy, arbitrary arrest, arbitrary detention, torture and even murder. Despite the uncovering of such questionable transactions by journalists and civil society groups, multinational corporations continue to sell such products to governments with troubling human rights practices without any legal liability. Similar to the reports of unpunished criminal misconduct and human rights abuses committed by contracted private military security companies in Afghanistan and Iraq, corporations selling surveillance spyware have also escaped accountability. This is in part due to the significant difficulty in finding corporate entities liable under the current international legal system and the general inapplicability of international human rights laws to non-state actors. This is especially disconcerting when multinational corporations have emerged to be such powerful actors in modern societies due to globalization and the privatization of many governmental functions. This Note responds to this problem by proposing a new shared responsibility regime between state and non-state actors, where the state becomes an accountable stakeholder in order to better regulate the sale of surveillance spyware and provide a better possibility of recourse to victims of human rights violations. Inspired by the multi-stakeholder approach taken in the development of the International Code of Conduct for Private Security Service Providers and its oversight committee, the International Code of Conduct Association, this Note calls for an analogous system in the regulation of surveillance spyware exports.