AUTHOR
Ciaran Ward
ABSTRACT
The digital age has created something of a “Big Brother” society in which the proliferation of modern technology has advanced the need for effective legislation to reconcile the right to privacy with the desire for a safer society where illegal or suspect activities can be adequately monitored. CCTV cameras are now omnipresent in the western world – in offices, in shopping malls, on public transport, sports grounds and airports. The monitoring and interception of e-mail/internet usage in the workplace has made it easy for employers to keep close tabs on their employees. In fact modern technology has undeniably rendered access to personal data much easier and cheaper. Facial recognition software used in some security cameras as well as sophisticated biometrics such as DNA databases, eye-scanning and digital fingerprinting have the potential for a “1984” style society.
The advent of the internet has given rise to a plethora of illegal activities both of a civil and criminal nature, notably hacking, online credit card fraud, the spread of viruses and distribution of obscene images. The global nature of the world wide web has internationalised the problem. Following on from the criticism of the US intelligence services after their failure to prevent the events of September 11 2001, the pressure on governments to monitor suspicious activities has increased alarmingly. The problem for governments particularly those in the west is thus striking a balance between effective policing and respect for human rights. In his influential 1994 publication Electronic Eye, Lyon outlines this paradox, pointing out that “surveillance simultaneously represents both a means of social control and a means of ensuring that citizens’ rights are represented”.
The question the law must pose therefore is to what extent is such surveillance intrusive? The flood of emergency legislation introduced by western governments in the wake of September 2001 has come in for much criticism by civil libertarians who in their campaign for a transparent society claim that these events were merely used to justify greater surveillance of the public.
Most western democracies as well as the European Union have implemented privacy and data protection legislation of some description. The latest European directive on privacy (the Directive on privacy and electronic communications, 2002/58/EC) repeals the Directive on Personal Data Protection and Telecom Privacy (97/66/EC) issued a mere five years earlier. The new directive takes into account the explosion of mobile phones and e-mail usage and in theory guarantees confidentiality of communications, but cites certain exceptions – i.e. in the interests of ‘national security… defence, public security and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system’. Such exceptions could however be abused by public authorities to encompass a much broader range of circumstances than their intended meaning.
The need to curb “high tec” crime requires a degree of covert surveillance, but when an individual is merely under suspicion there are obvious problems with this approach, as many influential civil liberties groups around the world have pointed out.
Article 8(1) of the European Convention on Human Rights which states “Everyone has the right to respect for his private and family life, his home and his correspondence” should theoretically act as a safeguard against any unjustified violations of privacy.
It could be argued that civil liberties groups will never be fully content regardless of the compromises privacy law attempts to implement. It seems that in any case privacy will always come at a price. Governments and other public authorities may never come clean about their darkest secrets and will always invent exceptions to the rule to suit their own ends. Civil libertarians claim that public interest exemptions from data protection laws have merely resulted in major violations of privacy. Just how much the public knows is debatable, but one would suspect that this is very little. The degree of surveillance of members of the public is probably much greater than we imagine. Despite the legislation on the subject it seems that the powers that be will always find a way around this.
The question is do the innocent really have nothing to fear? Certain well documented cases would appear to suggest otherwise.
This paper examines the conflict between existing laws on privacy and surveillance and the need for the enforcement of human rights with reference to the vast range of existing literature on the subject, current legislation, case law and initiatives within the UK, the EU and selected jurisdictions – with an emphasis on electronic data and covert surveillance.