#14826 - Privacy And Surveillance - Criminal Justice, Security, & Human Rights

Feldman: the scope of legal privacy

What is privacy?

• A right to privacy derives its justification from three sources: some level of privacy is necessary for human flourishing

• Personal autonomy – privacy helps to produce the conditions in which freedom of choice can be exercised without interference

• Utility – people operating effectively and happily when they are allowed to make their own arrangements without state interference

• Surveillance and the collection and use of personal information without consent fails in some degree to respect dignity and separateness of individuals – it’s to do you ensuring mental and emotional security

• Whilst sometimes said to be individualistic, such privacy rights are better to be conceptualised as part of a balance between the interests of individuals, groups and the state privacy rights protect a sphere of action and DM for individuals against the power of the state, wielded in the PI

• Privacy rights are controversial bc they restrict state action but privacy is important to maintaining a functioning community as privacy allows group to form and function without undue interference and without it intimate relationships could not be formed and overall privacy should be seen as socially valuable

• Three factors tend to limit the extent of the protected sphere of privacy:

• Responsibility the state adopts for the welfare of its citizens

• The need for regulation (eg. Regulating professions/protecting consumers and thus requiring information)

• The public interest in freedom of information

• It looks as though privacy rights are left in a weak position as they are protected insofar as they are compatible with the PI – clear from A8 ECHR; BUT important to note that privacy is given its special status as a human right is its close connection with ideas of dignity and autonomy; so the state can interfere with these rights, but this interference must be clearly justified

Positive and negative aspects:

• Negative: the right to be left alone/the right to freedom from intrusion as a core aspect of the right to privacy

• Positive: these elements are more elusive/controversial

• Duty on the state to foster conditions in which privacy can be enjoyed

• A right to have access to information held by the government which is sensitive and may affect ability to make an autonomous decision

• Where the right can be interfered this, the strength of the interest in privacy may demand the imposition of special procedures before the interference can take place

Privacy law in the US:

• ‘The right to be left alone’ in US jurisprudence from the 1880s and subsequently came to be regarded as a constitutional right implied right to privacy in the fourth amendment, despite not being mentioned directly in the text and the first amendment also protects autonomy rights, central to individual autonomy aspects of privacy

• Despite being of uncertain scope, the right to privacy in the US constitution has been durable – it is soundly based in the right to make decisions about the conduct of on’es life within the sphere of personal autonomy and the interest at the root of the constitutional protection for privacy in the US is personal autonomy and the issue is the extent to which the individual should be protected against interference from public authorities and the core meaning of this right is the right to be let alone

Privacy in intl law and under the HRA:

• The formulation of the right: positive and negative obligations

• Most intl HR’s instruments recognise a right to privacy, but there is an interesting contrast between formulations

• A17 ICCPR (*identical to A12 of the universal decl of HR’s, except not divided): (1) = negative formulation (freedom from arbitrary or unlawful interferences) but (2) = positive right (the state must ensure that the law protects people against arbitryary and unlawful itnerferences with privacy); clear under (1) that this formulation of the right to privacy with its reference to ‘honour and reputation’ as being founded on the idea of dignity

• A8 ECHR: the rights are more extensive and clearly drawn but no link to honour or reputation and so A8 can be said to be about doing and living and not just maintaining dignity for its own sake; instead of giving a right to be free from interference, A8 gives a right to respect and this movement might seem to weaken the right, as arguments could be made that interference might not indicate a lack of respect BUT we need to recognise there has been a considerable extension of the right which the notion of respect may entail (eg. Respect for correspondence and link to prisoner’s rights) and it is important to note that a right to respect is capable of imposing positive duties because it can be interpreted as requiring active measures to be taken to enable people to have a private and family life

• ECtHR has affirmed that positive obligations arise out of A8 eg. In child care decisions which affect the family

• This interpretation of article in the ECHR imposing positive obligations also exists with respect to other rights: eg. Implicit within A6 rights to have a right of access to a tribunal (golder v UK)

• Grounds on which interferences may be justified under A8(2):

• In accordance with law:

• Domestic law to be compatible with RoL – considering the quality of the law

• Even in relation to national security, the law should lay down the conditions under which and purposes for which the power may be exercised with at least sufficient clarity to provide some control over authorities’ behaviour and if this is not done, there wont be adequate legal protection in domestic law against arbitrary interference, particularly where these interferences are taking place in secret

• Purpose specified in A8(2)

• Necessity and proportionality:

• States given a margin of appreciation in making policy choices but the freedom is not unconstrained – measures adopted must respond to a pressing social need and must not exact a higher price than is necessary and acceptable in a democratic society

The slow movement towards negative privacy rights in English law

• Until recently, English law left little scope for the protection of privacy as the protection of privacy only had limited importance in English culture

• Although there was law which protected certain interests associated with privacy (eg. Under property law), until relatively recently English judges nor Parliament thought in terms of a right to privacy and this was because of the difficulty in defining the right with any clarity

• The lack of a right to privacy against the state became evidence in Malone – the view was that anyone was entitled to do anything not prohibited by law but this was unsatisfactory not taking account of the power imbalance between individuals and the state but until the HRA = no statute gave effect to a right to privacy (*might be possible to now state with developments in the CL that there is a tentative right to privacy)

Positive rights protecting private and family life in English law

• Restrictions on the use of personal information as well as access to and correction of stored information

PRIVACY: THE FOUNDATION

• It is important to work out where one stands on the question of the fundamental justification for pribacu rights because eit is likely to dicyaye the use to which one can put them

• Historically and theoretically the notion of privacy has emerged from a political ideal of the individual, the family and small groups of people working together consensually for a common object as the basic elements in society

• The rights under A8 of the ECHR and the privacy rights under the US constitution are founded on the fundamental importance of these units to people’s psychology and self-fulfilment, to their opportunity to participate in democratic political processes and to the welfare of society

• Right to respect for personal information far from being core elements are usually parasitic on these foundational privacy rights: respect for individual dignity, self-determination, family relationships etc. it is autonomy itself, the freedom to pursue one’s own objectives and life style and to enjoy personal space, which is the fundaemtnal justification for privacy related rights

EXTRA:

• Canada and aus = prior indp scrutiny by judicial expertse cf. uk exec

Germany: disclosure principle – unless threaten national sec, subject of warrant to be informed of the interception after it has taken place – approved in Klass cf. UK