Civil Liberties and Security in Cyberspace - Hoover Institution

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Hoover Press : Cyber DP5 HPCYBE0500 06-11-:1 11:53:04 rev1 page 188 188 Ekaterina A. Drozdova Protection of privacy has evolved historically through international and domestic law. Privacy is a fundamental human right recognized by the 1948 Universal Declaration of Human Rights and many other international and regional instruments and treaties. 6 The Universal Declaration proclaims that “no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation,” and “everyone has the right to the protection of the law against such interference or attacks.” 7 It also states that “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” 8 These provisions create the basic international law framework for the right to privacy, which extends to cyberspace. 9 On the national level, privacy is protected through a combination of constitutional and legislative instruments and self-regulation. Nearly every country in the world recognizes a constitutional right to privacy, including at least the rights to inviolability of home and secrecy of communications. Some recently written constitutions, such as those of South Africa and Hungary, contain rights to access and control of one’s personal information. In countries where the right to 6. The Universal Declaration of Human Rights, UN GA Res. 217A (III) (1948) and the International Covenant on Civil and Political Rights, UN GA Res. 2200A (XXI) (1966, entry into force 1976), oblige state signatories to adopt legislative and other measures to protect against unlawful and arbitrary interference with and attacks on privacy by state authorities or natural or legal persons. The 1950 European Convention on Human Rights (Council of Europe, European Treaties, ETS No. 5) is a binding treaty that obligates its signatories to protect privacy interests, such as the right to private and family life, home, and correspondence,and enforces this obligation through the European Court of Human Rights. A state, person, nongovernmental organization or group of individuals claiming to be a victim of a violation by a contracting party may apply to the court for redress. 7. Universal Declaration of Human Rights, art. 12. 8. Ibid., art. 19. 9. Stein Schjolberg, Chief Judge, Moss Byrett City, Norway, “Legal Mechanisms for International Cooperation—Protecting Privacy and Other Rights,” presentation at the Stanford Conference, December 6–7, 1999.
Hoover Press : Cyber DP5 HPCYBE0500 06-11-:1 11:53:04 rev1 page 189 Civil Liberties and Security in Cyberspace 189 privacy is not explicitly guaranteed by the constitution—the United States, Ireland, and India, for example—this right has been established through other legal provisions or judicial rulings. 10 The advent of information technology provided a new context in which to consider privacy and a new legal impetus for the protection of personal data. The first modern legislation on collecting and handling personal data emerged in the early 1970s in Sweden (1973) and the United States (1974). 11 The Organization for Economic Cooperation and Development (OECD) was the first international organization to issue a policy, “Guidelines on the Protection of Privacy and Transborder Flows of Personal Data,” adopted in 1980 (see Figure 1). The OECD’s policy applies to personal data, whether in the public or private sectors, that pose a danger to privacy and individual liberties because of their nature or the manner in which they are processed and used. 12 Development of international standards continued in the 1980s and 1990s. The Council of Europe (COE) adopted a “Convention for the Protection of Individuals with regard to the Automatic Processing of Personal Data” (1981) and “Guidelines on the Use of Computerized 10. The 1995 U.S. Department of State review on human rights practices reported that 110 countries guaranteed the right to privacy in their constitutions. See David Banisar, “U.S. State Department Reports Worldwide Privacy Abuses,” excerpts from “U.S. Department of State Country Reports on Human Rights Practices for 1995,” Privacy International, available at www.privacy.org/pi/reports/1995_hranalysis. html. The 1999 survey by the Electronic Privacy Information Center (EPIC) (“Privacy and Human Rights: An International Survey of Privacy Laws and Developments”) updated this count to nearly every country and reported that at least 55 countries do not have constitutional provisions on privacy but establish protections through other legal means. For a discussion of privacy law in the U.S., see Robert Gellman, “Does Privacy Law Work?” in Philip E. Agre and Marc Rotenberg, eds., Technology and Privacy: The New Landscape (Cambridge, Mass.: MIT Press, 1998), pp. 193–218. 11. Ulrich Sieber, “Legal Aspects of Computer-Related Crime in the Information Society—COMCRIME-Study—prepared for the European Commission,” Version 1.0 (January 1, 1998), Section I.B.2.a, “Protection of Privacy,” pp. 62–64. 12. “Implementing the OECD Privacy Guidelines in the Electronic Environment: Focus on the Internet,” Group of Experts on Information Security and Privacy, OECD, DSTI/ICCP/REG(97)6/FINAL, pp. 6–10.
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