According to Reidenberg (2000: 1318), policy in the United States protects personal information according to a market-dominated paradigm, where limited statutory and common law rights are granted for information privacy. In Europe, on the other hand, the privacy protection norm is dominated by privacy rights. The European Union, for example, requires Member States to include comprehensive statutory protections for its citizens when it comes to privacy rights.
The fact that the electronic flow of information occurs on an increasingly global platform has complicated the issue, as divergent national norms and statutes confront each other with increasing frequency where privacy protection is concerned. The various national responses to the terrorism issue is a further complicating factor. The international policy confrontations regarding privacy protection for citizens ultimately resulted in prolonged international negotiation, and finally in a compromise known as the "Safe Harbor" agreement (Long and Quek 2002: 326). In this compromise, the somewhat stringent privacy requirements to protect EU citizens were relaxed to match the more lenient requirements by the United States. The purpose of the agreement was to facilitated electronic commerce between EU countries and the United States.
Where the EU then operates from a basis of privacy rights for citizens, other countries, like the United States, tend to again focus upon a more government-centered view, where national security and other political issues dictate privacy laws. This has been a particular issue in the years after 9/11, while still remaining controversial in the political and e-commerce arenas. Horn, writing in 2002, addresses some of the issues that created controversy in terms of the conflict between privacy rights and security after the 2001 attacks.
Horn (2002: 2234) addresses the specific concern of privacy advocates regarding electronic surveillance paradigms in the United States. Indeed, both privacy advocates and citizens in general have displayed an increasing distrust of electronic devices used by law enforcement agencies for electronic surveillance of suspects. The author notes that such distrust may not be displaced. The Carnivore system created by the FBI for example is the focus of such distrust. The system was created to intercept and collect electronic communications where criminal activity was suspected. As justification, the reason for the new system was that criminals are increasingly sophisticated in their use of the Internet for illegal activities. To counter this, Carnivore is installed on a computer network -- generally those of Internet Service Providers (ISPs) to capture and store information running through these networks.
Significantly, the system has been in existence since 1997, but only became known to the public in 2000 (Horn 2002: 2235). This resulted in significant controversy regarding the control the government and law enforcement have over citizens and their use of private information. While some have acknowledged the importance of electronic surveillance to ensure the safety of citizens, others believed that Carnivore and other electronic surveillance systems are simply too invasive, particularly in cases where no criminal activity has been proven.
This is also the case with the "War on Terrorism." Citizens and privacy advocates alike have increasingly voiced their concern over the increasing power of the government and law enforcement agencies to engage in surveillance of private citizens without their knowledge (Soma et al., 288). In addition to privacy rights, these activities have also resulted in controversies regarding the Constitution. Indeed, especially during the early part of the decade, there were numerous reports of profiling and general government harassment that targeted certain nationalities under the umbrella of "suspected terrorism." It therefore appears that privacy rights in the European Union have enjoyed greater constitutionality than those in the United States. It is however also important to make a specific comparative study of these issues in various major countries to obtain a more global view of how privacy and its variety of related concepts manifests itself across the world. Furthermore, the issue of terrorism and other types of crime also manifests itself in a variety of differential ways across national borders. All these issues have significant effects upon privacy rights and issues.
7.2
Impact of Telecommunications Interception and Access Law on Privacy
As seen above, the impact of telecommunications interception on privacy was varied since the time of its inception. With the development of technology today, this is becoming an increasingly important as well as controversial issue. Indeed, a variety of laws and policies have been implemented in order to mitigate the negative impacts of telecommunications interception on privacy and the rights that go along with it. It is also important however to consider what is being protected apart from human rights; the free flow of...
Much legislation is focused upon mitigating this. The question remains however to what extent such legislation should be allowed to restrict constitutionally guaranteed human rights. One such important legislative issue is for example the extent to which police should be able to track wireless calls (Lee, 2003).
Privacy Protection and Lawful Access
Ayoade and Kosuge (2002: 274), privacy is not only a matter of government interference, but also of personal protection from access by outside parties. The authors mention encryption technology in this regard. The authors note that the increasing concern with privacy protection within the electronic environment has necessitated the relaxation of laws regarding the individual use of encryption technology. Concomitantly, however, this places tools in the hands of criminals and terrorists to prevent lawful access by government agencies in certain circumstances. This is why only a few countries allow the use of such technology by individuals. The conflict between the drive to protect individual privacy online and the ability of the government to access private information has created a significant controversy that has not yet been completely or indeed adequately addressed. The issue concerns not only individuals, but also the larger framework of society, such as critical infrastructure. The danger of disallowing cryptography could lead to an increasing ability by terrorists and criminals to access vital electronic frameworks to create damage that would take years to repair.
Protection of Critical Social Freedoms Amid Electronic Freedom
Abbas (2006) suggests that freely available information carries considerable risk, not only in terms of terrorism, but also in terms of the general bases upon which society functions, such as critical infrastructure. Critical infrastructure protection (CIP), in other words, is significantly impacted by technology that has developed and is developing so rapidly that no time has yet been taken to implement adequate security and protection measures. This is the reverse side of privacy protection of citizens. Businesses, entities, and infrastructure are all at risk of hacking or other types of terrorism because of the free flow of electronic information.
Critical infrastructure is then particularly important in terms of adequate protection, as this refers to essential services and structures upon which the stability and security of a country is built (Abbas 2006: 234). Such structures ensure the delivery of goods and services such as utilities, banking, finance, transport, health and food. Currently, critical infrastructure tends to be based upon electronic information systems and databases. It is therefore critical that the information in these databases be protected, particularly against terrorism and other malicious attacks. The success of such attacks in disabling such systems would also significantly impact upon the infrastructure elements that they control, and hence upon the economic and social well-being of citizens (Abbas, 2006: 235).
Important in this regard is the fact that physical and cyber infrastructures interconnect -- disabling one means disabling everything within the infrastructure system that depends upon it. Once again, the free availability of information within electronic systems means that all infrastructures are vulnerable to malicious terrorist and criminal attack. Because of this vulnerability, critical infrastructure protection (CIP) measures have been implemented, particularly in Australia to identify areas of potential harm and protect the infrastructure related to these areas (Abbas, 2006: 236). It is also important to recognize that vulnerabilities are not only related to deliberate sabotage by terrorists or criminals, but also to natural disasters, system complexities, equipment failure, and human error. Hence, protection of such infrastructure is multifocal.
In terms of protection against terrorism specifically, the CIP process has received particular attention from the government as well as funding and research entities, both in Australia and nationally. Indeed, it is regarded as one of the most important areas of priority in terms of mitigating terrorist threats in the country. Entities such as the Research Network for a Secure Australia for example regard CIP as one of the most important areas of funding and protection in the country. The author notes that this is the case for all countries, particularly since 2001, and other terrorist activities and threats throughout the last decade. This is perhaps also why some governments have lost sight of the importance of also protecting their citizens against undue state power, even while attempting to protect the infrastructure that ensures the continued peaceful and free existence for citizens. Some legislation for example stop short of human rights abuses in its attempt to protect countries, their infrastructure, and their much-celebrated "way of life." Bronitt (2003: 1)…
