This paper examines the impact of telecommunications interception and access laws on privacy rights across the United States, Australia, and the United Kingdom. It explores the tension between national security imperatives—intensified after the 9/11 attacks—and constitutionally protected civil liberties. Topics covered include definitions of telecommunication privacy, the effects of landmark legislation such as the USA PATRIOT Act, Australia's ASIO Act, and the UK's RIPA 2000, as well as the implications of workplace electronic surveillance. The paper also addresses critical infrastructure protection, the global Echelon surveillance network, and the material and non-material costs of interception policies. Throughout, the paper argues for a balanced approach that safeguards both national security and individual human rights.
Technology today has furnished the world with the gift of instantaneous communication. Unfortunately, this also means a fertile field for those who would see the world plunged into chaos through terrorism and other destructive criminal activities. Viewed from this perspective, it is perhaps not surprising that many Western governments have taken extreme measures to prevent the use of telecommunications for covert terrorist planning. However, an increasing number of critics have begun to question the validity of this approach, especially as it concerns human rights (Breyer 2005). The concern with privacy occurs not only on a collective national — and indeed worldwide — level, but also on a smaller scale. Many have been concerned with workplace privacy, for example, while others have experienced privacy issues on a highly individual level.
While some argue for the sanctity of workplace privacy — reasoning that privacy respected at home should also be respected at work — others argue that the workplace is public space and therefore the domain of the employer. Hence, workers may forfeit the right to send private information via channels provided free of charge by their employer (Kierkegaard 2005). On a more collective level, it is important to consider issues of telecommunications and privacy, as the boundaries of privacy and invasion have become somewhat arbitrary (Centre for Democracy and Technology 2000). In the world after 9/11, it has perhaps become time to rethink the legal and personal implications of monitoring individuals and their communications on grounds such as ethnicity, race, and religion. Surely a democratic world should be built upon democratic principles, and the law should reflect this.
The concept of privacy in today's technological environment has become significantly complex. The very definitions previously connected to privacy as it relates to communication have changed. After the 9/11 attacks in 2001, privacy became not only complex but also controversial, with governments attempting to justify their right to invade the communication privacy of citizens while human rights groups advocate against this. Although the horror of 9/11 has somewhat abated, the concern with communication privacy remains, along with concomitant human rights concerns, as noted by Breyer (2005: 366).
Posner (2008: 245) acknowledges the complexity of the privacy issue by observing that privacy "is a word of many meanings." One specific meaning attached to privacy as it concerns telecommunications today is Posner's reference to "secrecy." This means that a person is concerned with concealing information about him- or herself for a variety of reasons that generally concern degrees of embarrassment or grievance. Usually, people wish to conceal information about their age, health problems, mental health issues, or criminal records. In most cases, this drive towards concealment is legitimate. Posner (2008: 246) makes the important point that such concealment is often in the interest of clear communication. He names the example of clear speech during a telephone conversation when people are unconcerned that outside parties are listening: speech flows freely, and the danger of misunderstanding is minimized. However, when there is fear of intrusion into the private conversation, speakers tend to be guarded, with a concomitant lack of clarity. The same is true of settings such as a Catholic confession, a medical consultation, or a psychiatric evaluation — clients speak more freely when assured that their information will remain confidential, and it is only when speaking freely to these professionals that clients can hope to achieve a remedy for their situation. Taking such privacy away would be a severe detriment to the mental, spiritual, and physical health of such persons and should by law be justified (Breyer 2005: 367).
In a wider social sense, Posner (2008: 246) also notes that there is value in the ability to speak freely — at least initially — without fear of attack. Ideas among colleagues or friends can form part of a firm's innovative process, which requires strategic plans to remain secretive in order to promote competition. This is a legitimate privacy construct that promotes the economy of a country, as firms should be able to construct innovative designs and ideas without disclosing them to rivals prior to entering the market with a new product or service.
After 9/11, however, there has been a significant change in government privacy policy, as well as in citizens' attitudes towards the government. According to Posner (2008: 246), "People hide from the government, and the government hides from the people, and the people and government have both good and bad reasons for hiding from the other." Although many call for greater transparency from the government, the author emphasizes that complete transparency would paralyze planning and action. On the other hand, complete opacity is not conducive to a functional citizen-government relationship: both liberty and security are in jeopardy should the government maintain complete secrecy from the people. From the government's viewpoint, complete privacy cannot be granted to citizens either, as terrorist activity would then be allowed to thrive unabated. Finding a balance between the privacy concerns of government and citizens respectively has been a matter of considerable controversy since the late eighteenth century (Soma et al. 2005: 287).
Some of this concern is related to the near-exponential rise of computer technology, enabling government entities to gather and store vast quantities of digital information within seconds. Posner (2008: 246) suggests that focusing these capabilities on general citizens would discourage the free exchange of ideas and significantly hamper the free speech rights provided by the Constitution. On the other hand, discouraging the free exchange of ideas among potential terrorists would also discourage terrorism (Posner 2008: 247), which is critically important to the preservation of rights for innocent citizens. Hence the government's attempts to convince the public that giving up "some rights" is important for the sake of retaining a certain "way of life."
Ware notes that certain entities do have the right to collect private information about citizens, but that citizens' privacy rights also dictate that such information must be protected against surreptitious acquisition by unauthorized parties. Modern technology has facilitated many social and financial systems, making it possible to communicate instantly and at very low cost with people across the globe. Payment and credit systems have been simplified, enabling many previously excluded individuals to participate in both local and foreign exchange. Ware mentions many examples, including airline and hotel reservation systems, the Social Security Administration's SSADRS network, and the payments-exchange mechanisms of the National Bank Americard. Although security measures are generally in place for high-sensitivity systems, Ware makes the important point that the increased availability of electronic records also makes them vulnerable to improper use or surreptitious acquisition.
Reidenberg (2000: 1317) also discusses the rapid development of computer technology and its movement from institutionalized to personal computing in almost every home, which has largely decentralized the use, creation, collection, and processing of personal information. Personal information has also increasingly begun to flow across national borders. As Reidenberg (2000: 1318) notes, "In the United States, the sale of personal information alone was estimated at $1.5 billion in 1997." With online sales increasing exponentially, the global economy depends largely upon the personal data that drives it, making fair practices essential to the protection and privacy of citizens using online services.
The difficulty is that technology has advanced so rapidly that countries have experienced considerable difficulty in both optimizing and standardizing their protection legislation regarding personal and electronic information. Policy in the United States protects personal information according to a market-dominated paradigm, while in Europe the norm is dominated by privacy rights — the European Union, for example, requires Member States to include comprehensive statutory protections for citizens. The international policy confrontations regarding privacy protection ultimately resulted in prolonged negotiation and the compromise known as the "Safe Harbor" agreement (Long and Quek 2002: 326), in which the somewhat stringent EU privacy requirements were relaxed to match the more lenient requirements of the United States in order to facilitate electronic commerce.
Horn (2002: 2234) addresses specific concerns of privacy advocates regarding electronic surveillance in the United States. Both privacy advocates and citizens in general have displayed increasing distrust of electronic devices used by law enforcement agencies for electronic surveillance of suspects. The Carnivore system created by the FBI is one focus of such distrust: the system was created to intercept and collect electronic communications where criminal activity was suspected, and is installed on computer networks — generally those of Internet Service Providers (ISPs) — to capture and store information running through those networks. Significantly, the system had been in existence since 1997 but only became known to the public in 2000 (Horn 2002: 2235), resulting in significant controversy regarding government and law enforcement control over citizens' private information.
As seen above, the impact of telecommunications interception on privacy has varied since the time of its inception. With the development of technology today, this is becoming an increasingly important and controversial issue. A variety of laws and policies have been implemented to mitigate the negative impacts of telecommunications interception on privacy and the rights that accompany it. It is also important, however, to consider what is being protected apart from human rights: the free flow of information could, for example, make countries vulnerable to infrastructure attack, and much legislation is focused upon mitigating this risk. The question remains, however, to what extent such legislation should be permitted to restrict constitutionally guaranteed human rights — one important legislative issue being the extent to which police should be able to track wireless calls (Lee 2003).
Ayoade and Kosuge (2002: 274) observe that privacy is not only a matter of government interference, but also of personal protection from access by outside parties. They 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. At the same time, this places powerful tools in the hands of criminals and terrorists to prevent lawful access by government agencies. This is why only a few countries allow unrestricted 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 adequately addressed, one that concerns not only individuals but also the larger framework of society, including critical infrastructure.
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 so rapidly that no time has yet been taken to implement adequate security and protection measures. Critical infrastructure refers to the essential services and structures upon which the stability and security of a country is built (Abbas 2006: 234), including utilities, banking, finance, transport, health, and food supply. Since critical infrastructure tends to be based upon electronic information systems and databases, it is critical that the information in these databases be protected, particularly against terrorism and other malicious attacks. The success of such attacks in disabling these systems would also significantly impact the economic and social well-being of citizens (Abbas 2006: 235).
Physical and cyber infrastructures are interconnected — disabling one means disabling everything within the infrastructure system that depends upon it. Because of this vulnerability, CIP measures have been implemented, particularly in Australia, to identify areas of potential harm and protect the related infrastructure (Abbas 2006: 236). Vulnerabilities include not only deliberate sabotage by terrorists or criminals but also natural disasters, system complexities, equipment failure, and human error. Some governments have, however, lost sight of the importance of protecting their citizens against undue state power even while attempting to protect the infrastructure that ensures the continued peaceful and free existence of citizens. Bronitt (2003: 1) claims that there is a certain element of "opportunism" in post-9/11 legislation and its so-called necessity, not only in the United States but across the Western world.
"PATRIOT Act, ASIO Act, and RIPA examined critically"
"Cell tracking, Pharmatrak, and employee monitoring"
"Material and psychological costs of surveillance regimes"
The costs of electronic surveillance and telecommunications interception have been significant, not only in terms of material or monetary costs, but also in terms of psychology and human resources. Indeed, these costs can be globally applied to both the physical, privacy, and human resource environment. In the United States, while the horror of 9/11 has largely abated, the issue of electronic surveillance has perpetuated itself into an issue not only of private but also of public and political debate.
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