Role of State in Data Protection - Essay Example

Intervention in Private Spheres of Activity for their Intended Public Interest January 18, Data Protection is one of the primary issues in the information society where new technologies have emerged posing new threats to privacy. However, with new technology, advanced ways of facilitating protection have also helped Governments of different countries carefully design explicit legislation to control privacy protection. Surely maintaining the balance between the need for privacy and data protection, on the one hand, and law enforcement, on the other, is no easy task. The tension between the right to privacy, data protection and law enforcement is an important feature of contemporary society and one which is set to grow as network technologies, such as the Internet, enable us to communicate almost instantaneously with organizations and individuals regardless of geographical location. For example, it is because of the emergence of a 'borderless' society that law enforcement agencies increasingly seek to be exempted from the full rigors of the privacy laws. That this kind of exemption can lead, in turn, to misuse and abuse of these powers is perhaps one of the 'costs' we have to bear if law enforcement agencies generally are to be effective in combating crime in the information age. However, before evaluating how ethically right is the State's intervention in the privacy of the members of the society for its proposed public interests, the very terminology of "Privacy" needs to be understood. Extensive material in literature on the definition of Privacy reveals that the term's meaning differs under various approaches to privacy offered by different scholars. Privacy's most widely spread definition has been coined by Warren & Brandeis (1890, p. 205) who define privacy, as an intrinsic value, the "right to be let alone" (Stahl, 2007). Another approach to define privacy by (Stalder, 2002) is that of informational self-determination which sees privacy as the right to determine who accesses person-related data. This interpretation is widely spread in continental Europe whereby privacy may be taken in terms of property which includes the protection of an individual's financial records, health records, ex-directory telephone numbers, criminal records, etc. If person-related information can be treated as property, then privacy issues can be reduced to the more established (intellectual) property law as Spinello (2000) puts it. As an instrumental value, privacy has been described as an important aspect of humans where a truly private space is necessary for mental health (Nissenbaum, 2001), is required to trust others and, more generally, to develop good social relations (Gallivan. & Depledge, 2003; Johnson, 2001). A functioning society thus requires the provision of privacy for its members (Introna, 2000) and that applies to data both computerized and on paper records of its members. The UK legislature's stance on their privacy policy brought about the Data protection Act in 1998 which supersedes the earlier Act of 1984, which aimed to implement Council Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data. Essentially, any person or organization (the data controller) collecting and processing personal data (that is, data which relate to a living individual who can be identified from those data, and includes any expression of opinion about the individual) must register with the Information Commissioner, and must specify various items of information about the data collected and the uses to which the data will be put (Harris 2006, p. 124). The DPA's purpose was to create universal European standards for the collection, storage and processing of personal information. It allowed certain individuals to know what information about them is being held. If enough members of these groups applied their rights they might be able to amass sufficient information to assess an organization's intelligence sources (Subramanian 2008, p. 56). The European Directive 95/46/EC aimed to implement the OECD Fair Information Principles (Privacy Rights Clearinghouse, 2004). It therefore required Member States in Article 6 to ensure that data was processed fairly and lawfully, that it was only used for the purpose it was collected for, that there was no excessive data collection, that the data was kept accurate, and that it was anonymous, where the identity of the individual would no longer be needed (Subramanian 2008, p. 60). It also ordained the undertaking of appropriate technical and organizational measures against unauthorized or unlawful processing of personal data and against accidental loss or destruction, or damage to, personal data. Personal data was not to be transferred to a country or territory outside the European Economic Area, unless that country or territory ensured an adequate level of protection of the rights and freedoms of data subjects in relation to the processing of personal data (Harris 2006, p.124). Perhaps not surprisingly, although it applies to both private commercial enterprises and public bodies, including government departments, the Act contains certain exemptions. Principally, data pertaining to national security, the prevention or detection of crime, the apprehension or prosecution of offenders, or the assessment or collection or any tax or duty or of any imposition of a similar nature, among other matters, are exempt from some or all of the provisions of the Act. Although it may be thought sensible to exclude police information and some security information in the interests of national security or crime prevention and detection, the Secretary of State is given considerable further powers under the Act to grant various additional exemptions from the provisions of the Act. Given that the use of covert technical surveillance now has a comprehensive regulatory framework, albeit one that is heavily criticized, could the convention also place similar demands on the use of the now ubiquitous public space visual surveillance schemes Behind those laws, however, there are philosophical concepts of privacy that are not always easy to identify but that are important to recognize if one wants to understand how and why privacy is legally protected. However, where privacy protection laws are introduced by the state for the governing of a secure and well-integrated society, suffice it to say that State holds a veto power in legalizing the privacy laws that are conducive to their purposes. The Marxists see the legal system as part of what Althusser termed both repressive and ideological state apparatuses. In terms of capitalist ideology as expressed through law, private property and data protection is regarded as fundamental to social and economic stability; the values of justice and legal neutrality are presented as endemic in our legal system (obscuring the 'reality' that law is in fact operated for the protection of the interests of powerful capitalism), and the legal system is presented by lawyers and politicians as providing justice for all. Beliefs concerning the 'agreed' values as to the legitimacy, equality and justice of law and government may themselves be ideological constructs serving to bolster and justify capitalist institutions and processes (Harris 2006, p. 24-5). In suggestion that the judges look to a view of the public interest to inform their attitude to the controversial matters of law and order, of political and economic conflict, of sexual and social mores, of personal liberty and property rights, of protest, of governmental confidentiality, of students and squatters, of race relations, of immigration and the rest, I mean to absolve them of a conscious and deliberate intention to pursue their own interests or the interests of their class. I believe that in these matters and within the considerable area of decision-making open to them they look to what they regard as the interest of the whole society (Griffith 1977, p. 202). The protection of the public interest in the preservation of a stable society is how the judges see their role. In other eyes their view of the public interest appears merely as reactionary conservatism. It is not the politics of the extreme right. Its insensitivity is clearly rooted more in unconscious assumptions than in a wish to oppress. But it is demonstrable that on every major social issue which has come before the courts during the last 30 years - concerning industrial relations, political protest, race relations, government secrecy, police powers, moral behavior - the judges have supported the conventional, established, and settled interests. And they have reacted strongly against challenges to those interests. This conservatism does not necessarily follow the day-to-day political policies currently associated with the party of that name. But it is a political philosophy nonetheless (Griffith 1977, p. 212-213). Marxists see Judiciary as performing a capitalist function in the society where government's intervention in individuals' private spheres of activity from all spectra of the society is all but inclined towards the interests of the ruling class. Griffiths (1977, p. 205) sheds light on how 'Law is the will of that State which seems to stand outside and above society', in the view of Marxists. In his book on 'The politics of the Judiciary', Griffith analyses regulation that Francis (1993, p. 5) defines as "State's intervention in private spheres of activity to realize public purposes". In a Capitalist society, Marxists view State and Law as governed by the ruling class on the basis of the economic relationships between classes, where legitimizing the exercise of Capitalists' control maybe legalized by the state to seem neutral. Exploited people in a capitalist society accept the fact of political and economic domination and suffer at their privacy at the hands of the dominant class. One reason, according to Marx and other Marxist writers, is that the ruling classes have control of those state institutions which give expression, when the need arises, to forceful repression: the army, the police and the law. But apart from those 'repressive state apparatuses' the ruling classes also control, through various public and private institutions, the dominant ideas, opinions and attitudes about how society operates: 'the ideas of the ruling class are in every epoch the ruling ideas: i.e., the class which is the ruling material force of society is at the same time its ruling intellectual force.' This collection of ideas, values, standards and beliefs - this ideology - finds expression, according to later Marxist writers such as Gramsci and Althusser through social institutions such as the school, the family, political (including trade union) organizations and, importantly, law. This ultimately influences how State, as mainly ruled by the bourgeoisie, intervenes in the affairs of the lower classes, mostly the marginalized and minority groups in the society for their own interests. If seen in the light of this theory, personal data of the lower classes, which have to deal more with the welfare system due to their increased dependence on it, is more readily accessed and investigated openly by the State for research purposes, crime investigation etc. Surveillance tends to narrow their attention more on this division of the society for crime detection, monitoring social control by way of secret cameras, tapping phones etc. Because of their fundamental importance to the economic or political structure, the capitalists' personal power is based on conditions of life which as they develop are common to many individuals, and the continuance of which they, as ruling individuals, have to maintain against others and, at the same time, maintain that they hold good for all. The expression of this will, which is determined by their common interests, is Law (Marx and Engels 1965, p. 358).1 Employment sector is another feature of a capitalist society, for example, where individuals' privacy may be threatened by the employees for their own interests, such as their own security etc only because of the power as a result of their empowerment on the economic institution. Although the Data Protection Act in the UK implies that each individual in society should be left free to regulate his own affairs with as little interference as possible by the state and relationships between people in business and employment are to be regarded as best left to the parties concerned, to drive as good a bargain as they could get for their goods or services (Harris p. 18), consequently, in line with this dominant ideology, there started to be relatively little state intervention through legal controls over, or restrictions upon, business, industry or employment. Although piecemeal legislation in the nineteenth century did begin to lay down minimum standards of working conditions; for example, by means of the Factory Acts. If the rapid development of technology has created problems for the copyright owner, then the same may be said of the ordinary citizen whose personal details may, through computer data files, be easily communicated to others for all kinds of reasons and purposes (Harris, p. 123). The interest at stake here is a person's interest in information about themselves and what may be done with it, and, we might say, an interest in personal privacy. The Data Protection Act 1998 represents an attempt to recognize and protect people's interests in personal information relating to them. There are many situations in which data concerning private individuals are filed on computers or stored in manual filing systems by both public and private organizations. This may be done for commercial purposes (as where a person's creditworthiness is assessed and filed by a bank or finance company) or administrative purposes (as where a government department or agency retains data relating to tax, motor vehicles or television licenses). One of the many problems in such records is the general threat to individual privacy posed by the collection, processing and transferring of personal information. We are dealing here with a statute of considerable complexity which if seen in view of consensus theory, seems a straightforward way of maintaining social control and solidarity. Talcott Parsons, a consensus theorist, (Harris 1977, p. 22) viewed society as a 'system' comprising actions and institutions, each functioning to maintain social stability and order. His view has been frequently criticized, not least because of its assumption that society is indeed characterized by a shared consensual value-system where intervention of the different institutions in the privacy of its members is just a necessary action to maintain order in the society. Some critics have pointed out, for example, that Parsons' analysis concentrates on examining those elements within society which tend towards the maintenance of order and equilibrium, at the expense of considering those elements which tend towards social conflict and instability - elements which must be accounted for in any theory of social order. For example, too much invasion into the private spheres of activities of the layman of a society at the hands of the government will surely result in disorder and rebellion in the citizens. However, in many ways, the advancement in technology has facilitated better regulation of policies and norms for states especially in terms of surveillance and controlling social disorder. Throughout the history of policing in Britain, the response to social disorder and rising crime rates has been to adopt the most modern equipment and techniques available. Over the past thirty years in particular, considerable advances in technology have dramatically increased the powers of the state to carry out surveillance upon its citizens. This inevitably brings with it the dystopic vision of an Orwellian society, where citizens are constantly under the vigilant gaze and attentive ear of 'Big Brother'. Surveillance, undoubtedly, has two faces. It can act to curtail rights through, for example, reinforcing divisions within society, or it can be a vital tool in preventing and detecting crime. For citizens to accept and consent to certain forms of surveillance, that is to say its positive face, the state should be accountable for its actions. It cannot be left with an unfettered discretion to determine why and where it carries out surveillance on and on behalf of, its citizens, without some form of legal responsibility. The governors and the governed should be subject to the law. Surveillance by the State, however should be within ethical limits. For example, surveillance tapes showing embarrassing or tragic incidents can be found in the UK and in the US and they should be avoided at all costs. David Loukidelis (2002) notes that 'in the UK, a man tried to commit suicide by slashing his wrists and the tape showing his suicide attempt and rescue was broadcast in the UK. This is not acceptable and must be avoided at all costs.'2 On the face of it, one could interpret the Data Protection Act (1998) as a strong means to ensure privacy. However, it is quite explicit about the need to consider employer interests in collecting data. To return to the above argument that there are the two views of privacy as an intrinsic or instrumental right, one can deduce from the practice of the information commissioner that it is seen as instrumental. While employers are forced to collect data only for relevant business purposes, there is no description of what would constitute a legitimate business interest (Johnson, 2001). Such a conclusion is supported by Article 7 of the Data Protection Act (1998) which explicitly exempts employment-relevant data from some of the protection that personal information is generally afforded. This seems to suggest that employers' interests are not limited by a more fundamental right to privacy.3 Around the globe, people are forming private, nonprofit and voluntary organizations to pursue public purposes once considered the exclusive domain of the state. The lack of any legal regulation governing the use of electronic surveillance devices by the police in the UK would inevitably be problematic in light of the Human rights. Economically, environmentally and socially, where the state has failed, nonprofit groups are taking advantage of revolutions in communications and bourgeois values to fill these gaps for themselves. This "associational revolution" may be permanently altering relations between states and citizens and prove as important to the latter twentieth century as the rise of the nation-state was to the nineteenth (Salamon, 1994).4 Regulatory bodies, users of personal data, and individual "data subjects" all play both conflictual and mutually reinforcing parts in data protection systems. However, they cannot easily answer the question, "Who gets what data protection" Even though a principal aim of data protection policy is to safeguard the privacy of individuals, policymakers and official regulators are less able to achieve their objective to the extent that they only imperfectly monitor the effects tha their own and others' activity has upon the privacy of those they aim to protect.5 The strategies and operations of regulatory bodies may therefore be less effective than they could be. Data users are less able to gauge the impact of processing activities upon their clienteles, and to tailor their own compliance with the principles of data protection. For their part, individuals are less able to develop a critical awareness of their relative place in the distribution of privacy protection, and of their relationship to the systems in which their personal information is used. They, along with political actors and privacy advocates, are also less able to judge how well regulators and data users are protecting privacy. In more academic terms, our knowledge of the privacy effect of information technology on society will remain one-dimensional without a more finely grained understanding of distributions and patterns. It is often believed that both privacy risks and data protection are unevenly spread across social categories. This assumption is open to fruitful hypothesizing and research, but there are few systematic studies to test it, with a view - in part - to informing regulatory policy and strategy. There is little reliable knowledge of whether the privacy of women, for example, is more often invaded than that of men' nonwhites than whites; poor than rich; old then young; ill people than healthy; and so on. Similarly, the distribution of protection and safeguards is obscure. There is always a need for a balance to be struck between safeguarding the rights of the individual to privacy and the need for society to have the appropriate means to protect itself against fraud and other criminal activity. The intention of recent changes to the legislation is to restore something of that balance by helping to place the right emphasis on privacy and confidentiality. Everyone has a right to privacy. Everyone has the right to have their privacy protected. How far, therefore, can the security practitioner go to ensure the effective operation of their organization while at the same time protecting the interests of that organization References Griffith, J 1977, The Politics of the Judiciary, Manchester University Press ND, United Kingdom. Harris, P 2006, An Introduction to Law, Cambridge University Press, United Kingdom. Read More