Access to One’s Private Data without a Warrant: A Threat to Privacy Rights
Right to privacy is a fundamental right available to every person. It is enshrined in a sovereign’s constitution if not enacted by it’s legislation. If the statute or law enforcement run counters the fundamental law, the Court would always rule against the state. If legislation is enacted in contravention with this basic legal principle in any democratic country, the same is most likely to be scrapped and considered to have never been enacted in the eyes of the law if brought to the attention of the courts of justice.
Privacy International in its website provides that to date, around 130 countries all over the world have right to privacy incorporated in their constitution and over 100 others have legislative enactments (2017). The United Nations Declaration of Human Rights (UDHR) of 1948 specifically provides in Article 12 that “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” (Privacy International, 2017). Likewise, Article 17 of the International Covenant on Civil and Political Rights (ICCPR) of 1966, specifically mandates that “ No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour or reputation and everyone has the right to the protection of the law against such interference or attacks.” (Privacy International, 2017). These two international covenants are mandated for each United Nations member country to strictly uphold and defend at all times. Also, some provisions for this regard is also included in some of regional treatises and international agreements signed and became binding to the respective sovereign members.
With the foregoing, the importance of privacy rights cannot be overemphasized. In view of the globalization, technological advancement and innovation, this right has been often times unconsciously neglected by the individual because transgressions of those in authority in one’s privacy are not easily discernible by an ordinary human being. Intrusion to one’s privacy right ordinarily does not involve coercion, detention and the like that a lay person could not readily determine unless one has knowledge of his right and knows when and how to assert his right.
Law enforcement, in their defense of possible privacy right abuses and violation would often times hide under the cloak of public safety and security. That is, for them privacy rights of an individual becomes subordinate to the interest of the public at large for a safe and peaceful community.
This paper firmly stand to state that though the reasons of the government may be valid, those are not sufficient grounds to preclude the rule of law to be dispensed with. Legislative enactment relevant to law enforcement by the executive should at all times consider the legality of every action.
Access to one’s private information without a warrant in the light of statutory enactment for law enforcement is not only a threat to one’s basic inherent right to privacy. It also affects the stability of peaceful and vibrant community of the state and the community of nations in general. For these, such undertaking is not proper because first, the person during the investigation process enjoys the presumption of innocence. Second, it would be detrimental to social and legal order. Third, it has a negative implication towards relationships with other foreign nations.
It is fundamental in the criminal justice system that during the investigation stage by the police officers, alleged malefactor remains to be innocent in the eyes of the law. This is founded on the principle that “a man accused of a crime is far no less than entitled than his accuser, the freedom, dignity and respect as an innocent member of the community”(Wilkinson, 2018, pp 603). Unless proven guilty by a competent authority, an alleged suspect remains to be innocent and is still within the protective ambit of the law as all the rest. This legal principle does not only protect a person of his dignity, freedom and morality. This also encourages positive reciprocal relationship between the sovereign state and its citizens for the common good.
In terms of social order, laws are principally set-up for the ultimate purpose of promoting social order towards a progressive and peaceful community. Imagine a world where the rule of law is absent. Anarchy, chaos, poverty and criminality would be the norm. Obviously, this is not an image any person would like to be situated in. And even the government is not spared from its obligation to exercise its mandate to follow the rule of law it deems to practice and promulgate.
It can be said that regardless of the urgency and expansive advantage of allowing access to private information to curtail serious crimes for the general public, the government is ought to follow the rule of law. It is not exempted from the mandates of protecting and preserving at all times, especially the inherent right of each individual, though one is a subject of an alleged criminal investigation.
One important aspect underlying the privacy right violation is that most often, the surveillance is undertaken in secret. State surveillance operations, either in the general perspective or particular operations are commenced without the other party knowing (Austin, 2015, pp. 108). Without such knowledge, obviously, he is not in a position to contest it. Thus, it removes a valid constraint that would allow one to assert the lawfulness of the surveillance (Austin, 2015, pp 108). Austin pointed out that “if the legal opinions establishing lawfulness are secret, if the activities at issue are secret, if the legal opinions are ones that even those tasked with oversight must defer to, then the lawfulness of surveillance is one-sided affair” ( 2015, pp 108).
Regardless of the circumstances, the rule of law requires prior legal authorization or warrant before a police or surveillance agent could legally allow to conduct their investigation. Austin has enunciated that state surveillance, given the exceptional nature of emergencies should always apply rational analytic methods to prevent certain kinds of threats that have been identified at some level of generality ( 2015, pp. 105). “The proper frame of the rule of law challenge is not about the question of whether executive discretionary authority in relation to emergencies can and should be constrained by the reason of the law, instead, it is about whether mass surveillance as a mode of rational social ordering is in conflict with the deepest commitments of law as a mode of rational social ordering” (Austin, 2015, pp. 106). Thus, it is a misconception to say that obtaining a warrant under urgent circumstances would lead to a futile apprehension of the criminal wrongdoer.
With the degree of commercialization, technological advancement and globalization rapidly taking place across different jurisdictions, it can be said that assertion for an individual’s privacy right has become more complicated, thus invariably threatened. The Global Internet Liberty Campaign, is an international survey on privacy laws and practice identified globalization, convergence and multimedia as the three major trends that affect privacy invasion in today’s time (Global Internet Liberty Campaign, 2020).
Thus, in the enactment of laws relevant to apprehension of criminal wrongdoers, due consideration should also be made with the government’s obligation towards the international community as well. This would facilitate the enactment of cross-border laws that should complement the international community by virtue of signed treatises and international agreements. Thus, enactment of laws by the government should also be made in the light of international perspective.
Given the successful enactments of lawful access legislation in different countries, common to them all is the essential requirement of judicial authority. Surveillance, interception or access to private information cannot be had unless a warrant or authorization from a legal authority has been secured to conduct the surveillance or interception given the particular circumstances (Department of Justice, Government of Canada, 2018).
To conclude, it is strongly submitted that legislative enactment relevant to the access of privacy information without a warrant poses a threat to a person’s privacy right and has detrimental effects not only for the individual’s well-being but to the sovereign itself and to the relationship with other sovereign nations as well.
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