The Right to Privacy - Essay Example

?In relation to online communications, to what extent do you believe that the RIPA 2000 balances respect for private life with a need to protect the public? Introduction Historically, British policing has responded to increases in criminal activities by adopting the latest technological advances available. Over the past thirty or so years, technological advances have significantly improved state’s ability to conduct surveillance on ordinary citizens.1 Likewise advances in technology have also provided criminals with new tools for committing crimes. A necessary tension therefore arises between the need for the state to improve national security and the citizen’s right to privacy.2 This paper examines the extent to which the tension between protection of the public and protection of the right to privacy are resolved and/or balanced by reference to the Regulation of Investigatory Powers Act 2000 (RIPA) with respect to online communications. It is argued that the balance is in favour of protection of the public. The Right to Privacy In order to determine the extent to which the tensions between protection of the public and protection of the right to privacy are balanced in the context of online communications via RIPA, it is first necessary to analyse the legal framework relative to the right to privacy. To this end, Article 8 of the European Convention on Human Rights 1950 (ECHR) provides that “everyone has the right to respect for his private and family life, his home and his correspondence”.3 Article 8 of ECHR goes on to provide however, that the state may not contravene the right to privacy as expressed in Article 8(1) unless such interference 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.4 Article 8 taken as a whole would mean that “covert surveillance” is a contravention of the right to privacy unless it can be justified.5 Pursuant to the wording of Article 8(2) of ECHR, the right to privacy is not an absolute right, as legitimate exceptions are permitted in limited circumstances. However, where those exceptions exist such as the protection of the public or the prevention of crime, interference in the individual’s right to privacy must be according to law. In this regard, the European Court of Human Rights (EHR) ruled that any such laws or regulatory regime must be clear enough so that average citizens is aware that he or she does not have a reasonable expectation of privacy in the circumstances allowing state interference in private life.6 Obviously where an individual engages in certain activities in public, there can be no reasonable expectation of privacy.7 Obviously online communications are activities conducted in public and thus there should be no reasonable expectation of privacy, thus no breach of Article 8(1).8 Even so, the European Court of Human Rights has held that the mere fact that activities are conducted in public does not automatically mean that there can be no reasonable expectation of privacy.9 It therefore follows that if an activity is conducted in public and there is a reasonable expectation of privacy, the protection of privacy as provided for under Article 8 of the ECHR will arise. Online communications can be regarded as public activities but can raise complex questions as to whether or not there is a reasonable expectation of privacy. For example, posting in a public forum online or blogging are probably as public as an individual carrying a “banner” in public can reasonably expect for it to be read by almost anyone.10 Complicating matters for online communications relative to a reasonable expectation of privacy, online users often have several tools available to them for “restricting access.”11 On the other hands, there are instances in online communications where the user obviously has a reasonable expectation of privacy. For example, there are internet “service providers” that provide users with “secure virtual space” for the purpose of backing up files.12 Users can reasonably expect that those files may only be accessed by themselves or others to whom they might grant access.13 There are other methods of online communications that necessarily give rise to a reasonable expectation of privacy. For example, Facebook provides tools in which users may block access to information, photographs and posting and may designate those who may have access to any of these features. The test for the right to privacy and the reasonable expectation of privacy is typically measured by reference to the extent to which the disseminator of information/communications can restrict access to others.14 In fact, even in instances where the right to privacy must be balanced against public protection in terms of the global threat of terrorism, it is for the most part a contravention of privacy to intercept e-mail communications.15 Online communications however, presents officials with a unique difficulty. The difficulty arises out of the heavy traffic that encompasses the internet and the heightened fear of terrorism and of other forms of criminal activities that can be identified and circumvented by canvassing the internet. There are a significant number of human activities that either takes place online or is communicated online. Thus legislators and policy-makers have been attempting to determine who best to canvas potential sources of terror and crimes via online communications and at the same time respect the right to privacy.16 In its interpretation of Article 8(2) of the ECHR, the European Courts have been unambiguous in its contention that irrespective of the end goals, no constitutional right under the ECHR will be contravened unless citizens are fully aware of the reasons for the contravention by reference to national laws.17 With respect to the use of surveillance generally, the European Court of Human Rights stated that it is entirely important that national laws, particularly those dealing with technology that is growing more and more advanced, must be clear and detailed.18 In Kopp v Switzerland, the European Court expressed the view that intercepting communications of all kinds is a grave interference in the private life of the individual and the law allowing such interception must be entirely clear.19 The main question for consideration is therefore whether or not RIPA is clear enough to meet the standards set by the European Court of Human Rights. Only if RIPA meets the standard of clarity and the reasonable expectation of privacy criterion can it be deemed to have met its objective of balancing the protection of privacy against the protection of the public in a manner that is consistent with the state of the law relative to the protection of privacy. Regulation of Investigatory Powers Act 2000: Protection of Privacy and Protection of the Public RIPA is described as the legislative “attempt to provide” the necessary clear and “comprehensive regulation” that meets the standards set forth by the European Court for exceptions to the protection of privacy and for balancing the right to privacy and the protection of the public.20 RIPA regulates the authority of investigators in intercepting, acquiring and disclosing information or conducting surveillance on “private and public communications systems”.21 Part I of RIPA specifically deals with the interception of communications. Section 1 therefore criminalizes the international and unlawful interception of “any communication in the course of its transmission”, “at any place in the United Kingdom”.22 Section 1 immediately draws attention to the need for clarity. If it is an offence to intercept communication in the course of its transmission, it therefore follows that it is not an offence to intercept any communication prior to or after its transmission. Since RIPA is silent on post-transmissions and prior-transmissions it can be assumed that the interception of communications at those points does not constitute offences. According to the House of Commons Home Affairs Committee, the question of whether communications can be lawfully intercepted prior to or after transmission is a matter for the courts to determine in its interpretation of RIPA.23 However, the issue has not yet come up before the courts and until such time as it does Section 1 of RIPA remains unclear and quite possible incapable of meeting the requirements of clarity as mandated by the European Court of Human Rights. Nevertheless, Part I of RIPA applies to communications over both public and private systems and thus encompasses online communications. The application of online communication is further manifested by Section 1(3) which provides that if the interception is conducted by either the express or implied consent of the individual with control over the operation or the use of a private communications systems, but in the absence of lawful authority pursuant to RIPA, it will not be an offence but can give rise to an action in civil courts.24 In this regard, an online user who does not restrict access to communications where the facilities for doing so exist may be deemed to have implicitly agreed to have the posted communication intercepted and can only seek civil remedies in the event the communication is intercepted. Section 1(6) of RIPA also precludes criminal liability in cases where the person who controls the operation of the communication system or controls the use of it either causes or allows the interception.25 Section 1(5) provides that an interception is lawful if it is conducted pursuant to Sections 3, 4 or 5 of RIPA or under some other statute for the purpose of collecting communications that are stored.26 Other statutory powers would include search warrants or arrest powers as provided for under the Police and Criminal Evidence Act 1984.27 Section 3 provides for the lawful interception of communication where the parties to the communication in question have agreed to allow the interception or when the recipient agrees and the communication is covered by surveillance under Part II of RIPA, or where interception is incidental to activities connected to the functioning of postal or telegraphy systems such as opening a letter that is not addressed or for taking steps to safeguard against interference.28 Section 4 goes on to describe what constitutes lawful authority to intercept. Section 4(1) in this regard permits interception of communications in instances where it relates to cooperation on an international level.29 Section 4(1) will therefore facilitate the UK’s cooperation with other member states of the EU under the Convention on Mutual Assistance in Criminal Matters between Member States of the European Union.30 Thus Section 4(1) provides investigating authorities with a wide authority to intercept communications of all kinds including online communications regardless of whether there is a reasonable expectation of privacy for protection of the public. Section 4(1) is clearly not concerned with the protection of privacy and may be deemed to fall short of the requirements or standards set forth by the European Court of Human Rights. The specific purpose of RIPA is to safeguard against the contravention of the right to privacy as articulated by Article 8 of the ECHR in cases where investigative powers are used.31 It would appear however, that where investigative powers are used under Section 4(1) of RIPA, the protection of privacy is lost altogether. Section 4(2) provides that regulations are permitted which will allow: A legitimate practice reasonably required for the purpose, in connection with carrying on of any business, of monitoring or keeping a record.32 Regulations have been implemented by virtue of the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 which provides for a wide scope of exemptions inclusive of taping communications relative to contracts and regulations and detecting unauthorized utilization provided possible users are notified.33 Interception of communications of employees while using the communications systems at work are generally provided for the Telecommunications Data Protection Directive. However, the random and routine interception of employee communications could cause problems in terms of the right to privacy under Article 8 of the ECHR.34 Moreover, there is no real urgency here in terms of protecting the public. The only protection accorded under the regulation is the protection of business interests or the operation of the business faction of a public institution. Section 4(4) and (5) are designed to protect the public as it allows for the interception of communications by prisoners and maximum security psychiatric patients.35 While Section 4(4) and (5) would apply to online communications, it is highly unlikely that prisoners and psychiatric patients will have access to online facilities. In any event, should they have such access, they will not have the right to expect privacy as their communications can be intercepted by authorities. Section 4(4) and (5) are therefore heavily supportive of protecting the public and not the least bit concerned about the protection of privacy. By virtue of Section 5, executive (Secretary of State) as opposed to judicial authority is necessary for obtaining warrants to intercept communications.36 The limited use of judicial supervision of warrants calls attention to a lack of clearly defined regulations as the Secretary of State would not maintain the kind of reasoned judgments that the judiciary would maintain so that the average citizen would be in a position to know just when to expect to surrender the right to privacy as mandated by the European Court of Human Rights. The warrant is required to be both “necessary” and proportionate”.37 With the Secretary of State issuing warrants, there is a likelihood that what amounts to necessary and proportionate will not be made clear and one can expect an unpredictable and imprecise regulatory regime in which warrants are issued with no clear prescriptive criteria. In any event, a warrant can be obtained if it can be shown that the interception of communications are necessary “in the interest of national security”; for “preventing or detecting serious crimes”; “safeguarding the economic well-being of the United Kingdom”; or: in circumstances appearing to the Secretary of State to be equivalent to those in which he would issue a warrant by virtue of paragraph (b) [preventing or detecting serious crimes], of giving effect to the provisions of any international mutual assistance agreement.38 The emphasis here is on the protection of the public and it is broad enough to cover virtually any scenario. For instance, the economic well-being of the UK or the interest of national security can apply to virtually any crime that involves money or violence. Thus any person suspected of commercial or violent crimes can expect to surrender his or her right to privacy for spurious concerns about national security and the economic well-being of the country. Privacy however may be expected with respect to the further use of the communication after it has been intercepted. Sections 15 to 18 restrict the use of the intercepted communications and its subsequent retention.39 Third parties can also expect to be complicit in the interception of communications and this is particularly applicable to online communications. Section 11 provides that service providers can be obliged to aid in the interception of communications.40 Thus service providers will be required on whatever privacy protection they may have promised their clients if called upon by authorities to aid in the interception of communications made by their own clients. Communications It can be argued that RIPA is bereft of clarity and fails to meet the standards set forth by the European Court of Human Rights. RIPA certainly does not fully protect privacy pursuant to Article 8 of the ECHR.41 RIPA was enacted for three specific reasons. First, RIPA was intended to improve on the scope of the Interception of Communications Act 1985 and to modify the authority to intercept communications. Secondly, RIPA was intended to give effect to the privacy standards articulated by the European Court of Human Rights pursuant to Article 8 of the ECHR. Finally, RIPA was intended to implement the EU’s Telecommunications Data Protection Direction which specifically calls upon contracting states to “safeguard the confidentiality of communications”.42 RIPA had failed to accomplish its intended goals and in the process has left online communications vulnerable to interception by officials in the interest of public protection. Thus, RIPA fails to strike a fair balance between protection of privacy and protection of the public in the context of online communications. Bibliography Akdeniz, Y.; Taylor, N. and Walker, C. (2001). “BigBrother.gov.uk: State Surveillance in the Age of Information and Rights.” Criminal Law Review: 73-90. 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