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Privacy Underpins Human Dignity
Human rights, privacy and correspondence in an age of information technology
Ludwig De Braeckeleer (ludwig)     Print Article 
Published 2008-03-16 07:11 (KST)   
The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow though it; the storms may enter; the rain may enter -- but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.

Speech on the Excise Bill - 1733
William Pitt, 1st Earl of Chatham
Privacy is a fundamental human right recognized in the United Nations Declaration of Human Rights, the International Covenant on Civil and Political Rights and in many regional treaties, such the European Convention on Human Rights.

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Article 12 of the UN Declaration of Human Rights states that "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks."

Article 17 of the International Covenant on Civil and Political Rights recognizes and protects privacy in almost identical terms. "No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks."

The UN Convention on Migrant Workers and the UN Convention on Protection of the Child adopt the same language.

Key values such as freedom of association and freedom of speech cannot be protected if privacy is not guaranteed. In truth, Privacy underpins human dignity. But in this age of information technology, the protection of this important human right is raising complex legal and practical issues.

The European Convention on Human Rights

Article 8 of the European Convention on Human Rights states that:

(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
A Qualified Right

However, the right to respect for these aspects of privacy under Article 8 is qualified. This means that interferences by the state can be permissible. However, such interferences must satisfy certain conditions. To be permissible, any interference with the right to privacy must be conducted in accordance with law, in the interests of the legitimate objectives identified in Article 8(2) and necessary in a democratic society.

Defining Privacy

Of all the human rights in the international catalogue, the right of privacy is widely perceived as the most difficult to define and circumscribe. The Bible as well as Hebrew and classical Greek writings make numerous references to privacy as a right to be protected. Usually, these protections mostly focused on the right to solitude.

Today, numerous authors define the right to privacy as the right to live, as far as one wishes, protected from publicity. The European Commission of Human Rights gives the right to private life a broader meaning and considers that the concept also comprises the right to establish and develop relationships with other human beings.

Traditionally, privacy protection is divided into the following categories: data privacy, bodily privacy, territorial privacy and privacy of communications.

Surveillance of Communications

Nearly all countries have established some capability to intercept various forms of communication. In the majority of cases, these wiretappings are legal and have been authorized by law enforcement agencies. Nevertheless, abuses have been reported around the world. Invariably, the targets include trade union and student leaders, human rights activists and political opponents.

In recent times, United States law enforcement agencies have increased the magnitude and the depth of their collaboration with telecommunications companies. Basically, intelligence agencies seek arrangements that make phone systems "wiretap friendly." Such arrangements are not without legal risks for the telecommunications companies.

In the US, the Bush administration, at the request of the director of national intelligence, has tried, so far unsuccessfully, to obtain immunity, including retroactive immunity, for all acts of cooperation of telecommunications companies in warrant-less wiretapping. Such a bill was defeated by the House on Friday.

Communication and Surveillance Technology

The sale of surveillance technology has become a very lucrative international business. Around the world, developing nations seek technologies of surveillance such as digital wiretapping equipment, deciphering equipment, scanners, bugs, tracking equipment and computer intercept systems.

And there is no doubt that the surveillance technology is misused and certainly not limited to legal causes such as the fight against criminality and terrorism. A 1997 report, "Assessing the Technologies of Political Control," commissioned by the European Parliament's Civil Liberties Committee and undertaken by the European Commission's Science and Technology Options Assessment office (STOA) assesses that surveillance technology is used to track the activities of dissidents, human rights activists, journalists, student leaders, minorities, trade union leaders and political opponents.

The report states that these illegal surveillance methods prevent many people to exercise their right to democratic protest. The report concludes that "new surveillance technology exerts a powerful 'chill effect' on those who might wish to take a dissenting view."

The US has taken a lead in promoting greater use of electronic surveillance. While the European Union passed two key directives concerning the secrecy of personal data, the US government has worked relentlessly at weakening data bank secrecy laws.

Former FBI director Louis Freeh has been promoting the use of wiretapping all around the world, for example in countries such as Hungary and the Czech Republic.

As Privacy International observed, "In the absence of meaningful legal or constitutional protections, such technology is inimical to democratic reform. It can certainly prove fatal to anyone 'of interest' to a regime."

In Colombia, to name but one example, police recently conducted illegal wiretapping operation against journalists, opposition figures and government members. The government of Uribe has accepted responsibility. On May 14, 2007, the police chief and the head of police intelligence were forced to retire.

"The procedure is totally unacceptable, illegal and contrary to the policy of the government," Minister of Defense Juan Manuel Santos said about the affair. It remains unknown who ordered the wiretaps, which individuals were monitored and what was the purpose of the operation.

Internet and E-Mail Interception

The speed and reliability of the Internet is constantly improving but this new tool of communication has not been protected from interception and control by authorities. Quite the contrary, because the medium is new, it almost universally lacks the protections found in conventional systems, such as telephone and fax.

Law enforcement and national security agencies throughout the world have the capability to intercept. Moreover, such activities are legally conducted on a wide scale in many countries.

For instance, in the United Kingdom, law enforcement agencies have argued that interception of e-mail traffic should be permissible through agreements between police and Internet service providers.

US Leading Effort to Limit Privacy

The US has led a worldwide effort to limit the legal extent of individual privacy. At the same time, the US has greatly increased the capability of its police and intelligence services to eavesdrop on personal communications.

The campaign has had two legal strategies. Firstly, all digital telephone switches, cellular and satellite phones must integrate by law built-in surveillance capabilities. Secondly, the US government has aggressively sought to limit the dissemination of software that provides encryption.

For instance, the 1994 Communications Assistance for Law Enforcement Act (CALEA) mandated that phone companies install remote wiretapping ports into their central office digital switches, creating a new technology infrastructure for "point-and-click" wiretapping. As a result, federal agents no longer have to go out and attach alligator clips to phone lines.

In 1995, the FBI disclosed plans to require the phone companies to build into their infrastructure the capacity to simultaneously wiretap 1 percent of all phone calls in all major US cities.

In the early '90s, there were about 1,000 court-ordered wiretaps in the US per year. The astronomical increase of the number of wiretaps requested by the FBI is simply mind-boggling. It is rather obvious that wiretapping on such a large scale could not be conducted lawfully. As a matter of fact, it could not even been conducted by human beings.

"It's hard to see how the government could even employ enough judges to sign enough wiretap orders to wiretap 1 percent of all our phone calls, much less hire enough federal agents to sit and listen to all that traffic in real time," argues Phil Zimmermann who has developed an encryption code for the cause of human rights groups.

"The only plausible way of processing that amount of traffic is a massive Orwellian application of automated voice recognition technology to sift through it all, searching for interesting keywords or searching for a particular speaker's voice," Zimmermann concludes.

Right to Encryption

For many organizations, such as human rights groups, encryption has become a necessary tool for protection against surveillance. Encryption is a technique that allows people to scramble their communications and files to prevent a third party from reading them.

Pretty Good Privacy (PGP) is the best-known encryption program. Developed by Phil Zimmermann and his MIT team, the program has over 100,000 users, including groups such as Amnesty International and the Dalai Lama.

All through the 1990s, the question of whether strong cryptography should be restricted by the US government was debated.

This debate had the participation of the White House, the NSA, the FBI, the courts, the Congress, the computer industry, civilian academia and the press. Core issues of the debate were the questions of criminals and terrorists using strong crypto.

FBI officials warn that strong encryption, without a back door available to them and to the NSA, would be a terrifying tool for criminals and terrorists. They cited a case in which police could not inspect the computer files belonging to Californian child molesters because they had been sealed with PGP.

"A pedophile can drive up the street and pull little girls into his car. Should we ban cars?" asks Zimmermann.

In the past, export controls have discouraged software giant Microsoft Corp. from building strong encryption into its Windows programs. As a result, encrypting computer messages remains complicated to most users, including US businesses that have been easily preyed on by foreign spies.

"I don't want NSA not to be able to listen to Iraqi terrorists. But you're hamstringing US industry in the hope of hamstringing some terrorist who, if he's smart, can get around it anyway," says Stephen Walker, whose Maryland company writes encryption software.

In spite of the FBI's objections, the participants collectively concluded that society would be better off with strong cryptography codes having no government back doors. In 2000, the export controls on encryption codes were lifted.
©2008 OhmyNews
Other articles by reporter Ludwig De Braeckeleer

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