27 October 2003

Security Laws and Privacy: Striking the Balance
 
Part One: Personal Freedoms, National Interests

By Thomas B Riley, Executive Director and Chair, Commonwealth Centre for Electronic Governance

Privacy as a Human Value

The personal life of every individual is based on secrecy, and perhaps it is partly for that reason that civilized man is so nervously anxious that personal privacy should be respected. Anton Chekhov

In many countries of the world privacy, in the last few decades, has come to be cherished as an invaluable and inalienable human right, inherent to a free and democratic society. Privacy legislation endows the individual with certain rights and responsibilities, and establishes rules and guidelines for the ways in which public and private sector organizations are allowed to deal with the personal information collected on individuals and groups in society. Such laws aim to protect the individual from intrusiveness into their private lives. Individuals have the expectation that many areas of their lives should not be subject to the prying eyes of governments or the public.

More and more organisations, governments included, now know more about individuals than ever before in history.

Endemic to all privacy laws are a set of fair information practices that set the boundaries for protection of the individual while also allowing a certain latitude for organisations to use personal information when necessary and allowed by law. Privacy laws, those who administer them, and a public who value their privacy and speak out when necessary against potential abuses of these laws, are essential. These laws have acted as the barriers against intrusiveness and met, to some degree, individuals' expectations of protection from outside sources using one's personal information. In our growing surveillance society the walls between the private and the public are beginning to crumble. More and more organisations, governments included, now know more about individuals than ever before in history.

The Security Laws and Privacy Report assesses both the efficacy and the legitimacy of security measures against terrorism in the light of the concerns raised by critics on how privacy is being impacted in the process.

Almost everyone on any side of any related issue regarding security and privacy seems to agree that what is being sought is a "balanced approach" between the need to protect our privacy rights and the new security measures that have emerged in the past two years. Where stakeholder groups disagree is the point at which this balance lies.

There is a growing suspicion that governments are using the current climate of the new threats from world terrorism to rush through legislation and measures in order to gain more access to much wider swathes of personal information than was possible before 9/11.

There is also a worry that officials are seeking to use the new anti-terrorism laws as a means to lower the ability to access government information (that was once freely available on web sites and through other traditional means) and to use personal information in ways that were not previously possible because of strong right to privacy laws.

One of the most serious issues expressed by those interviewed for this paper was the ability of government agencies to link up databases across departments, which would then be made available to a multitude of law enforcement agencies who formerly did not have the legal right to access such information. Law enforcement and government officials argue that, in today's climate, sophisticated technologies and expanded usage of data is necessary to do their jobs. Privacy activists contend that in many cases governments are going too far in bringing down the walls between the massive databases that contain information on most of the populace.

The Tradeoffs Between Security and Privacy

Based on the interviews, the media coverage, the Internet documents, and the official publications reviewed during the course of the research, some comparisons and contrasts are in order.

The most vocal views on both sides of the issue can be found, by and large, primarily in the United States. Their history of vigorous political debate continues on this issue just as surely as during previous crises and conflicts. Although many of the same issues are discussed in the United Kingdom, their attitudes on both sides are more "matter of fact". Canada is located somewhere in between, with a limited few being as vocal as their American counter-parts, but most leaving it up to the governments of the day and the privacy commissioners to engage in full debate.

Media coverage is remarkably similar in the UK and US. Issues on these topics are often presented, in the eyes of some officials and critics, in one-dimensional and provocative ways, presumably in the ongoing attempt to call attention in their bid to effect changes in the laws. In Canada, many of the media have begun discussions and debate on the whole issue, on TV news shows and in the columns of national newspapers. Part of this is driven by the intense, vocal debate in the American media, which has spilled over the borders and airwaves into Canada.

For the foreseeable future security to assure survival appears to be the higher priority.

Neither the general public in Canada nor in the UK seem to be particularly anxious about these issues most of the time. By contrast, a small but vocal percentage of the American public is concerned, and ready to express their views contesting the issue. In all three countries, the outcome is more likely to be influenced by larger issues (the successes or failures of the global war on terrorism) rather than the direct merits or demerits of privacy protection or intrusion. This will likely not gladden the hearts of those who do take their privacy seriously, but for the foreseeable future at least, security to assure survival appears to be the higher priority, though with time this may diminish. As citizens learn of the numbers of people being locked up without due judicial process under powers endowed by the Patriot Act, doubts grow.

For this reason, it has become an important political issue in the 2004 American elections. Many groups are speaking out on the need to revisit the changes to laws because of their unintended impacts on many people who, pre-9/11, daily went about their business. Now these lines have been blurred, especially in the US, it will be important that a healthy tension is maintained between governments and the "official opposition", that is, a public who is willing to challenge and debate the measures. In this way, a balance between the need for strong but effective security laws will be countered by equally strong privacy and freedom of information guarantees.

Next week: Part Two: The Impact on eGovernment

This Report, prepared by the Commonwealth Centre for e-Governance entitled: Security Laws and Privacy: Striking the Balance can be found at the Centre's website: http://www.electronicgov.net/pubs/research_papers/index.shtml

Other articles by Thomas Riley:
- An Overview of the Knowledge Economy
- eDemocracy: An Evolution in Progress
- Definining E-Government and E-Governance: Staying the Course
- The Role of Information in eGovernment Implementation
- Change Management and the Relationship to eGovernment
- Privacy Trends: Meeting New Demands
- eDemocracy in a Changing World

Thomas Riley is the co-Founder, Chair of the Board and Chief Executive of the Commonwealth Centre for Electronic Governance, a think-tank set up under a Commonwealth Secretariat programme in London. He is also the President of Riley Information Services, a consultant and advisor specialising in national and international IT policy development, and a Visiting Professor of Law and Technology at the University of Glasgow. For further information he can be contacted at Tom@Rileyis.com