Privacy and Terrorism

Terrorism, Surveillance and Privacy: Assessing the Excesses 2012

Introduction

Privacy is an essential element of a free society without which individuals would lose the ability

to interact with one another in private. However, following the September 11 terrorist attacks in

the United States and subsequent attacks on other influential western countries, new laws have

been put in place arguably as an effective tool to prevent terrorist attacks and conjointly fight the

war on drugs. Whereas advancement in police surveillance technology are necessary in the fight

against terrorism, there is a clash between an individuals right to privacy and the States power

to infringe that right. For instance , the Fourth amendment to the US Constitution provide

guidelines against unreasonable search and seizure on one hand, the Patriot Act violates the

same, yet the courts are reluctant to invalidate such a law that infringe constitutionally given

right to privacy.

With the aid of new technologies, privacy protection has been eroded in favor of law

enforcement. This shift has undermined one of the rights that American citizens have depended

upon for hundreds of years; the right to privacy against unreasonable searches.1

Thus the paper seeks to show how surveillance technology has affected the traditional

understanding of privacy and what might be done to restore the fundamental protection privacy

right requires.

Privacy defined

Alan Westins four basic states of privacy are: solitude, intimacy, anonymity and reserve.2

An early, and extremely influential definition of the right to privacy was formulated by Warren

and Brandeis3, who suggested that the right to privacy was the right to be left alone, to protect

the privacy of ones thoughts and emotions.

Another way of defining the right to privacy is in terms of a right to control access to ones

personal information.4. Seeing privacy in this way makes it akin to a property right, in that it can

be dealt with in any way that the owner wishes.

1 Eleanor, B (2005), Technology and the Fourth Amendment: Balancing Law Enforcement with Individual Privacy. Pp. 2 2 Andrew Askland, WHAT, ME WORRY? THE MULTI-FRONT ASSAULT ON PRIVACY, 2006, 25 St. Louis University Publisher. L. Rev. 33 3 Samuel Warren and Louis Brandeis, The Right to Privacy Harvard Law Review (1890) cited in Lisa Austin Privacy and the Question of Technology. Law and Philosophy 22 (2003)119166. pp. 121123.


Also privacy may be defined by making reference to the notion of public and private spheres of

life. If privacy is taken as referring to the private realm, then a right to privacy is simply a right

to ensure that ones life is not subject to undue interference from the government.

Aspects of privacy5

Privacy by its nature is relative and it is therefore difficult to rely on a single interpretation.

Rather than seeking to pin a single definition, it is perhaps more helpful to provide an overview

of the principal aspects of privacy.

Informational Privacy

Informational privacy concerns the collection, use, tracking, retention and disclosure of personal

information. It includes data protection and informational rights, such as freedom of

information.

Physical Privacy

It is concerned with the protection from outside interference of the body, the physical self.

It is widely protected through both the criminal and civil law (rape, assault, battery, and so on).

Spatial Privacy

Is concerned with the setting of limits on intrusion into personal spaces, which is not limited to

home and domestic environments, but also the workplace, ones car, and even public space,

depending upon the context as held in the admissibility decision in Martin v. UK6.

Relational Privacy

Relational privacy refers to the freedom to determine ones associations with others and or

freedom from others.

Relational privacy is protected in certain respects by the law (e.g trade union laws) but it is also

restricted in certain ways (for example, through limitations on who is entitled to marry).

Communicative privacy

4 Darren Charters Electronic Monitoring and Privacy Issues in Business-Marketing: The Ethics of the Double Click Experience Journal of Business Ethics 35 (2002) 243254. Pp. 246 247 5 Gareth, C et al (2007): Overlooked: Surveillance and personal privacy in modern Britain. Pp. 7 6 Martin v. UK (Application No. 38199/97), March 27th 2003, European Court of Human Rights Admissibility); case note at [2003] E.H.R.L.R. 461. The Government had unsuccessfully argued that covert surveillance of the applicants home by video camera was not an Article 8 issue as the nuisance which the surveillance attempted to address was not private in nature, and the camera only recorded what would have been visible to a neighbour or a passer-by on the street.


It relates with privacy of ones communication(s). Generally, that your communications, post, e-

mails or telephone calls should not be interfered with.

The traditional understanding of privacy focuses primarily with individual rights of privacy

against state interference, thus a presumption that privacy as an interest is competing with

security.7

International Bill of Right: Justified Infringement of privacy Requirements

The International Bill of Rights as assented to by the General Assembly of the United Nations,

consists of three documents: the Universal Declaration of Human Rights (UDHR), the

International Covenant on Economic, Social and Cultural Rights (CESCR) and the International

Covenant on Civil and Political Rights (CCPR).

Both the UDHR and the CCPR assert that people have a right to privacy. Article 12 of the

UDHR states 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.

Article 17 of the CCPR is virtually identical:

The right to privacy under the International Bill of Right is not an absolute right, the declarations

under it seek to protect persons against arbitrary interference with their privacy.8

In order the determine when it might be justified to infringe upon a particular persons right to

privacy, then the following principles must be established and met:

1) The data obtained aims at achieve a good end.

2) The infringement of rights is necessary i.e. there are no other means that could be used

to achieve this end. 7 Arthur J. Cockfield (2007), Protecting the Social Value of Privacy in the Context of State Investigations Using New Technologies. 40 U.B.C. L. Rev. 41 67. Westin argues that privacy is the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others. 8 An arbitrary infringement of privacy is that based on an unrestrained exercise of authority, and a non-arbitrary infringement of privacy is one justified according to recognizable and objectively defined standards.


3) The good that is being aimed at by infringing upon this right, outweighs the evil that will

follow from infringing upon the right i.e. the infringement of rights is proportional to

the end that is being aimed at.

The usual situation where a police officer will be required to infringe upon a particular persons

rights is where such an infringement is necessary in order to protect the rights of another person,

in which case, it is fundamental to show that the infringement is necessary and there are

reasonable grounds at law to allow infringement of rights

There are a number of justifications showing that intrusion into privacy using surveillance

undermine the value of privacy, such accounts include:

That, privacy is inherent and it is morally problematic to disrespects that person by invading his

privacy. Hence, respect individuals dignity, treat them as autonomous agents, and not

undermine their independence .9

Secondly, based upon the moral status of those whose privacy is violated; impinging a persons

privacy is morally problematic in itself, without reference to other harms and regardless of

whether the subject knows his privacy has been invaded.10

Terrorism defined

The international community has established mechanisms to address the issues related to

terrorism, including the creation of the Counter-Terrorism Committee (CTC) and the Counter-

Terrorism Executive Directorate (CTED), the international community has been unable to agree

on a universal definition of terrorism. 11

9 Bloustein, Edward J (1964)., Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, New York University Law Review (39): 962-1007. 10 Benn, Stanley I., Privacy, Freedom, and Respect for Persons, in J.R. Pennock and J.W. Chamman (eds.), Nomos XIII: Privacy, (New York: Atherton Press, 1971), pp. 1-26; Reiman, Jeffrey, Privacy, Intimacy and Personhood, Philosophy and Public Affairs 6(1) (1976): 26-44; Warren, Samuel and Brandeis, Louis, The Right to Privacy, Harvard Law Review 4 (1890): 193-220 11 For reasons for lack of a universal definition, see: Informal summary prepared by the Chairman on the exchange of views in plenary meeting and on the results of the informal consultations, A/AC.252/2009/L.1/Add.1, Annex 1, Draft Report, para. 6 (30 June 2009). These include the inclusion of State use of force against civilians, including forms of State terrorism and avoid criminalizing self-determination in the definition


Shortcomings for lack of a universal definition

Lack of a universal definition of terrorism represents a serious limitation on States ability to

combat and prevent terrorism.

The lack of a definition also results in the creation of State counter-terrorism measures outside

the realm of international law and prevents the United Nations from exerting its moral authority

and from sending an unequivocal message that terrorism is never an acceptable tactic, even for

the most defensible of causes.12

States may create broad, overreaching definitions and inadvertently criminalize activity outside

the realm of terrorism, suppress oppositional movements or unpopular groups and prosecute

people for the legitimate exercise of protected human rights due to vague and unclear domestic

definitions of terrorism13.

Despite these barriers, there has been movement toward a definition. The Secretary-General

proposed guidelines for a possible definition in a report presented to the General Assembly in

2004. In this report, the definition includes language from Security Council resolution 1566

(2004) and includes acts committed against civilians with both 1) the intention of causing death

or serious bodily injury, or the taking of hostages; and 2) for the purpose of provoking terror in

the general public or in a group of persons or particular persons, intimidating a population or

compelling a government or an international organization to do or abstain from doing any act14.

Surveillance Instruments and Techniques

Surveillance means in its broadest to watch over. Surveillance and monitoring technology

has become commonplace throughout the world. It is used to supervise both social and physical

processes, and to monitor individual behavior.15

12 Follow-up to the outcome of the Millennium Summit, Note by the Secretary-General, A/59/565, para. 157 (2 December 2004) 13 Address by Ms. Navanethem Pillay to the Counter-Terrorism Committee of the Security Council, New York, p. 7 (29 Oct. 2009) 14 The U.N. Committee on Counter-Terrorism FES Briefing Paper, p. 10 (15 September 2007).

Through this definition, States can create more effective counter-terrorist policies within specific confines. This

narrow definition will protect human rights because States will not be able to justify acts under broad or vague

definitions. 15 Peter. K et al (2007): Surveillance technology and law: the social impact: Erasmus University Rotterdam. Pp. 1


Information gathering by means of electronic surveillance can be conducted by means of the use

of non-communication devices such as biometrics, RFID and video cameras or communication

devices such as the cell phone and the Internet.

Surveillance of the internet is the collection of different type of information on the internet by

means of surveillance methods.16

Camera surveillance

The use of audio-visual equipment (cameras) is closely connected to surveillance, especially the

use of CCTVs.

Cameras allow real time surveillance as well as retroactive surveillance.

These days the video signal is often not recorded and broadcast in an analogue form but directly

in a digital form, thus these video images can be relayed more easily to differing locations,

especially if the camera has a network connection and can communicate via the Internet

protocol.

Camera surveillance technique is reliable and commonly used as it is characterized by; motion

detection, zoom in on details, facial recognition, object pattern analysis and satellite image

transfer capabilities in advanced cameras.

The other technique is the radar detection device, used in road cameras and warns of the

vicinity of radar controlled speed measurement equipment.

The newest weapon against forgery is the use of digitalized biometric information as a means of

identification and DNA is generally regarded as being the most accurate and reliable biometrical

method. The technique uses the existing characteristics of persons or goods. This character can

be stored into a template which can be stored in a memory chip, which can be used in an ID.

The RFID, Radio Frequency Identification functions in the same way as the security bar code,

but it is so cheap and so small that it can be inserted during the manufacturing process of

16 Berkowitz Packet Sniffers and Privacy: why the No-Suspicion-Required Standard in the USA Patriot Act is Unconstitutional 2002 Computer Law Review and Technology Journal 2. Information collected is content data and traffic data: Traffic data is the addressing and routing information


virtually any product. The privacy aspect of this development, as it is, in principle, it can collect

information about what products a person has.17

Telecommunication Surveillance

The monitoring of all forms of telecommunication has also become large-scale. That monitoring

applies not just to telephone and fax messages, but also, and increasingly, to data traffic on the

Internet. Intelligence agencies also tend to use methods such, interception of communications,

covert audio surveillance, covert surveillance and tracking and tracing devices.

From a technical viewpoint, even speech can often be directly digitalized and then transmitted.

This is, for example, the case with respect to mobile telecommunication via GSM, Global

System for Mobile communication used by almost all mobile phones. Another technique for

directly digitalizing speech is VOIP, Voice Over IP. In this case, the audio signal is converted

into data packages, structured in such a way that they can be sent over the Internet. VOIP can be

used between two computers connected to the Internet (both having audio hardware)18.

The GPS, the Global Positioning System. Save for its navigational purposes, it can also detect

the precise location of a person or a thing. This information is passed on t, for example via a

GSM connection, making it much simpler to tracking down.19

A specific form of surveillance, entailing the surveillance of people rather than of telephone or

data traffic, allows people to be located, based on their mobile phone data. This information can

be derived from one or more transmitters for mobile phones. It makes it possible to determine

who was where (in the vicinity of one of these transmitters) at a certain time, at least if the

mobile phone was on.

Generally, surveillance technology infringes personal privacy, as it does not differentiate between

people; but monitors both suspects and non-suspects. This infringes the legal principle that coercive

measures should only be used against those for whom there are reasonable grounds to suspect them

of criminal activity.20

17 An extensive report about RFID that pays attention to technical aspects as well as privacy aspects is published by the US Government Accountability Office (GAO, Information Security, Radio Frequency Identification Technology in the Federal Government, 18 Peter. K et al (2007): Surveillance technology and law: the social impact: Erasmus University Rotterdam. Pp. 4 19 Ibid. Pp. 6 20 Ibid Pp. 10-11


Terrorism, privacy and Surveillance in perspective

The United States of America

The Fourth Amendment

The Fourth Amendment to the United States Constitution is the part of the Bill of Rights, which

guards against unreasonable search and seizure. It purports that any arrest should have (1) some

form of individualized suspicion (probable cause), (2) judicial review where feasible, (3) notice

of any search and seizure.21

Adequate notice requires that when agents use a warrant to seize property including intangible

property such as email or voicemail records they provide the owner of the property with an

inventory of the seized property.22

The Patriot Act23: An appraisal

The Act was passed by Congress as a response to the terrorist attacks of September 11, 2001.

The Act allows federal officials greater authority in tracking and intercepting communications,

both for purposes of law enforcement and foreign intelligence gathering. It was intended to give

federal authorities increased abilities to combat international and domestic terrorism.

The Act was enacted principally to prevent and punish terrorist acts in the US and around the

world, as well as enhancing law enforcement investigative tools.

The Patriot Act and the Fourth Amendment

These are provisions in the Patriot Act that directly affect the United States Fourth

Amendment.24

21 Susan N. Herman, The USA PATRIOT Act and the Submajoritarian Fourth Amendment,2006, 41 Harv. C.R.-C.L. L. Rev. 67 22 Note, however, that covert entry for the purpose of installing surveillance devices (e.g., phone taps) has long been considered constitutionally permissible. Dalia v. U.S., 441 U. S. 238, 248 (1979). 23An acronym for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorists], 2001 24 Susan N. H (2006), The USA PATRIOT Act and the Submajoritarian Fourth Amendment. 41 Harvard. C.R.-C.L. L. Rev. 67 The Bill of Rights Defense Committee believing that the Patriot Act provisions were a threat to the value of privacy, freedom of speech, freedom of religion, and other associations that one can have, led seven states and 399 cities to adopt a resolution condemning many provisions of the Patriot Act


Section 21525 of the Patriot Act permits government to obtain a court order providing access to

tangible things and objects on the basis of certification by executive branch officials and orders

the recipient not to divulge the governments request. More importantly, the section requires that

no person shall disclose to any other person that the FBI has conducted a business records

search, as doing so would be breaking the law26, as section 505 does. In order to have its request

granted, the FBI need not show any reason to believe that the target of the investigation is

engaged in spying, terrorism, or criminal activity, and the FBI may base its investigation at least

in part on the subjects First Amendment-protected activity. There is no statutory requirement

that the government provide the subjects of a section 215 search with notice of such a search.

Section 21327, although the section allows the government to be granted a warrant on probable

cause, per the Fourth Amendment, the sneak and peak allows agents conducting search

warrants to delay telling their targets that their property is being searched or even seized as such

notification can have adverse result contrary to the Fourth Amendment that requires notice prior

to search.

Thus, section 213s sneak-and-peek warrants and section 215s gag-rule (coupled with the lack

of a notice requirement) make it more difficult to determine when law enforcement agents have

obtained information about oneself.

The consequence of extending the application of section 213 to other areas of investigation is the

ultimate fear for every clause in the Patriot Act as the Act has application beyond terror

investigation.28

Section 218 requires a court order to authorize electronic surveillance, but it diverges from the

Fourth Amendment, as the rules on probable cause and notice are very relaxed.

25 Titled Access to Records and Other Items Under the Foreign Intelligence Surveillance Act, authorizes the government to acquire records, including educational or financial institutions, Internet service providers, or even librarians under court order. 26 The Reauthorization Act allows disclosure only where it is necessary to comply with the order or to an attorney in order to obtain legal advice or assistance regarding the order; these other parties are prohibited from further disclosure. H.R. 3199 106(e) 27 Sneak and Peak 28 Susan N. Herman, The USA PATRIOT Act and the Submajoritarian Fourth Amendment, 2006, 41 Harv. C.R.-C.L. L. Rev. 67 A letter from the Department of Justice stated that the deferred notification was used 153 and only 18 of those times were for terrorism investigation.


This section expands the power of the government in their Foreign Intelligence Surveillance

(FISA) to conduct electronic surveillance. Hence electronic surveillance is allowed in

furthering the investigation without a probable cause.

Section 505 allows the government to issue National Security Letters (NSL) to retrieve customer

records from ISPs without necessary court order required by section 215.

Section 505 surpasses section 215 in overstepping judicial oversight of governments collection

of information from third parties. It permits government to extract records from a

communications provider by issuing its own administrative subpoena, NSL.29 The government

only has to show that the information is relevant in a terrorist investigation, which the courts

have unambiguously allowed deviations from the Fourth Amendment principles of judicial

review, probable cause, and notice30.

The Fourth Amendment tests asks what expectations of privacy society is willing to protect,

however the court has allowed government discretion to perform surveillance under conditions

that the public would find unconstitutional and unreasonable.31

To understand this shift and show how courts have been subdued by the legislative power and

instead do not safeguard constitutionally granted and protected right to privacy, case law is thus

introduced to show the historical progression.

For instance, one of the first steps by the court took spearheaded the Congress for the protection

of individual privacy was in the Olmstead Case32, while emphasizing the need to protect the

secrecy of telephone messages, the court ruled that wiretapping was not a search in the sense

of the Fourth Amendment and therefore did not require a warrant, a decision overruled by the

subsequent decision in Katz v. United States33, where the Supreme Court ruled that wiretapping

was a search in the sense of the Fourth Amendment and that law enforcement agencies needed to

obtain a warrant before they could tap a phone line. The court decided to limit the scope of Katz 29 These includes telephone companies, Internet service, and libraries with computer terminals 30 Besar, X and Emir, C (2006), Privacy & Terrorism Review: Where Have We Come In 10 Years? Journal of International Commercial Law and Technology Vol. 7, Issue 2. Pg 6 31 Wayne N. Renke (2006 Who Controls the Past Now Controls the Future: Counter-Terrorism, Data Mining and Privacy, 43 Alta. L. Rev. 779 823. 32 Olmstead v. United States (1928), 277 U.S. 438, 43 S. Ct. 394. 33 Katz v. United States (1967), 389 U.S. 347, 88 S. Ct. 507


by stating a person has no legitimate expectation of privacy in information he voluntarily turns

over to third parties.34

In addition, Congress passed the Federal Communications Act of 1934 where no person not

being authorized by the sender shall intercept any communication and divulge or publish the

existence, contents, substance, purport, effect or meaning of such intercepted Communication to

any person35.

In United States v. Miller36 the court found that handing over information voluntarily to third

parties and then when government requested such information was not found unconstitutional. In

Miller the government acquired checks and other financial statements from his bank. Miller

argued that the bank was required to keep the documents procured and not give them to the

government as per the federal Bank Secrecy Act of 1970. In a majority ruling, the Supreme

Court ruled that Miller had no legitimate expectation of privacy once he voluntarily handed the

information over to the bank.

In Kyllo v. United States37, the police agents used a thermal scanner to look at Kyllos home. The

fact that the defendants had taken no steps to prevent their heat waves escaping was used to show

that they clearly did not expect their heat waves to remain private, and therefore they could not

object when those waves were observed by police officers.

By distinguishing the private home from a more general location and asserting the existence of a

minimal reasonable expectation of privacy, the Kyllo decision managed to break out of the

privacy-erasing circular logic of the Katz test.

Canadian Privacy Laws post September 11

The gathering of evidence in many jurisdictions is governed by some form of protection from

unreasonable search and seizure by the state. In Canada, this protection is found in Section 8 of

the Canadian Charter of Rights and Freedoms 1982; hereafter the Charter.

The Charter of Rights and Freedoms offers the strongest legal protections in Canada because

they are rooted in the Constitution. In addition, it is possible that privacy could be understood to

34 Ibid 35 Susan N. Herman, The USA PATRIOT Act and the Submajoritarian Fourth Amendment,2006, 41 Harvard. C.R.-C.L. L. Rev. 67 36 United States v. Miller (1939), 307 U.S. 174, 59 S. Ct. 816 37 Kyllo v. United States (2001)


fall under the broader protections of S.7 of the Charter, which reads Everyone has the right to

life, liberty and security of the person,38

Personal information is protected by a number of federal, provincial, and territorial statues. The

Privacy Act governs the collection, use, and disclosure of personal information by the federal

government of Canada.

However, the Supreme Court ruled on privacy interests in relation to S.8 in a range of contexts

outside surveillance, for example, with respect to bodily privacy (R. v. Dyment, 1988;

R. v. Arp, 1998) or with respect to ones electricity records (R. v. Plant, 1993) These type of

cases hinge on the question of whether the search was legal, that is whether law enforcement was

entitled to gather the evidence without judicial oversight in the form of obtaining a warrant. As is

clear from Hunter v. Southam Inc. (1984), a search is not legal if a reasonable expectation of

privacy is found.39

After the September 11, like the United States, Canada the government facilitated the

surveillance of citizens and foreign individuals.

Surveillance powers under the Canadian Criminal Code have been amended since 2001 by the

Anti- Terrorist Act. Although a judge of the Superior Court of justice has to approve the

electronic surveillance, the Act makes it easier to use electronic surveillance against terrorist

groups by extending the period of validity of wiretap authorization from 60 days up to one year

and delaying notice for a target after surveillance up to three years. 40

The Anti Terrorism Act has changed traditional Common law safeguards that required

independent judicial authorization prior to the issuance of a search warrant, instead discretionary

powers once reserved for the courts have been passed to the legislative powers.41

38Krista Boa (2007). Privacy Outside the Castle: Surveillance Technologies and Reasonable Expectations of Privacy in Canadian Judicial Reasoning. Pg. 3 39 Ibid 40 Arthur J. Cockfield, The State of Privacy Laws and Privacy-Encroaching Technologies after September 11: A Two-Year Report Card on the Canadian Government, 2003-2004, 1 UOLTJ 325 344. 41 For example, once the Minister of Defence is satisfied that his authorization would not encroach the privacy of Canadians, he can authorize international electronic surveillance without the need to seek prior judicial authorization.


With the exception of Quebec, Canada has pursued a self-regulatory approach to private sector

privacy protection through the passage of Personal Information Protection and Electronic

Documents (PIPEDA). PIPEDA alongside the federal Privacy Act, are overseen by the Privacy

Commissioner, an independent officer of Parliament.42. The general approach to PIPEDA is that

the consent of an individual must be obtained before certain personal information can be

collected, used or disclosed. To forward the persons information to a third party, this would

require explicit consent by the subscriber.43

In Europe, there is more protection of individuals information held by third parties, such

information cannot be released without the explicit consent of the subscriber. For instance, the

European Data Protection Directive seeks to provide consumer protection, and thus asserts that

European Union consumers must provide unambiguous consent prior to the collection of their

personal information.44

The same directive is reflected in protection of privacy laws in the United Kingdom located in a

variety of sources,45 the most notable being the remedy for breach of confidence46 or, as it has

more recently been called, misuse of private information47

For instance, the post-Campbell judgments in the Court of Appeal echo the words of Sedley L.J

in Douglas v Hello! Ltd: We have reached a point at which it can be said with confidence that

the law recognizes and will appropriately protect the right of personal privacy48

42 Personal Information Protection and Electronic Documents Act (PIPEDA), S.C. 2000, c. 5. 43 Unlike the U.S where no consent of an individual must be obtained before certain personal information can be collected, used or disclosed and anti-terrorism laws not subjected to open evaluation prior to their enactment 44 Arthur J. Cockfield, The State of Privacy Laws and Privacy-Encroaching Technologies after September 11: A Two-Year Report Card on the Canadian Government, 2003-2004, 1 UOLTJ 325 344 45 See, generally, Winfield & Jolowicz on Tort 17 edited by W V H Rogers (Thomson: Sweet & Maxwell, 2006) 607-18. For instance, Glidewell J in Kaye v Robertson [1991] FSR 62 at 66 identified the remedy as malicious falsehood. Remedies for invasion of privacy in the United Kingdom have been sought in libel, malicious falsehood, nuisance and trespass. And the European Convention on Human Rights, especially art.8 46 Notably the more recent judgments of Campbell v MGN Ltd [2004] 2 All ER 995 (HL); [2004] UKHL 22 and Douglas and Others v Hello! Ltd [2005] 4 All ER 128 (CA); [2005] EWCA Civ 595 88 Lord Nicholls in Campbell v MGN Ltd at para [14] and Sir Anthony Clarke MR in Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446 at para 24. Tanya Aplin The Future of Breach of Confidence and the Protection of Privacy (2007) 7 Oxford University Commonwealth Law Journal 137 argues that a limited tort of privacy in the form of misuse of private information should be recognized in the United Kingdom. 47 Jonathan Morgan Privacy, Confidence and Horizontal Effect: Hello Trouble (2003) 62 Cambridge LJ 444 has convincingly demonstrated that, while breach of confidence can do some of the work of an action for protection of privacy, it cannot protect the whole sphere of privacy (at 452). 48 [2001] 2 All ER 289


In spite of the Constitutional protection of the right to privacy under the Charter, the Canadian

Courts have been unable to protect it in their decisions.

For instance, while heavily relying on the decision in Southam Inc49, that S.8 protects persons not

places, in R. v. Wise (1992)50, the Supreme Court ruled that, a reasonable level of surveillance

of each and every motor vehicle is readily accepted, indeed demanded, by society to obtain this

protection51. The case involved the use of a tracking device (beeper), to monitor movement of a

motor vehicle. Mr. Wise was a suspect in a series of homicides and the police wanted to track his

movement. The issue was whether there can be a reasonable expectation of privacy in ones

movements when in public, namely on public roads.

The reasoning underlying this position is that being seen is tantamount to being watched with

scrutiny and that if one can be seen it is implicitly acceptable to monitor that person.52

R. v. Duarte (1990)53

In R. v. Duarte (hereafter Duarte) the police made an audio-visual recording of a narcotic

transaction in an apartment specifically wired to make recordings, which was occupied by an

undercover agent and an informant. The question was whether such information was private and

not therefore not to be disclosed as was encompassing a reasonable expectation of Privacy. It

was held that using informants and relying on their memories is entirely different from

surreptitiously recording conversations. This position is opposed by another judge, Cory J. in a

dissenting opinion observes that, ..technology is merely an extension of human memory and

the use of human informants.

In this way, the content of the conversation becomes more public by virtue of having been

communicated to another, and the speaker risks further publication of the information should the

first listener report it to others54.

R. v. Wong (1990)55

49 Hunter v. Southam Inc. 2 S.C.R. 145.(1984) 50 R. v. Wise. 1 S.C.R. 527 (1992 51 Para. 6 52 Krista, B (2007). Privacy outside the Castle: Surveillance Technologies and Reasonable Expectations of Privacy in Canadian Judicial Reasoning. Pg. 10 53 R. v. Duarte. 1 S.C.R. 30. (1990) 54 Ibid. pg. 7 55 R. v. Wong. 3 S.C.R. 36. (1990)


In R. v. Wong, the police conducted electronic surveillance by installing a small camera in a hotel

room to determine whether it was being used as an illegal gambling parlour. The issue of

whether by inviting others (including strangers) to attend an event, that event becomes public,

regardless of the location.

Held: There is no reasonable expectation of privacy in the hotel room, based on the premise that

a person attending a function to which the general public has received an open invitation can

have no interest in being left alone56

Finally, in R. v. Tessling (2004)57 the police flew over Mr. Tesslings home and used forward-

looking infrared (FLIR) technology to capture an image of the heat distribution on the walls of

his home in order to develop an idea of whether he was growing marijuana inside. The judgment

focuses on whether the capability and sophistication of the FLIR technology, allows law

enforcement to see inside the home, thus constituting a search of the home, which clearly

requires a warrant.

While overturning the Court of Appeal decision which found that, FLIR technology constitutes a

search of the home, as it gathered information about what was happening inside that home, the

Supreme Court held that, using FLIR technology is not equivalent to a search of a home but an

external search for information about a home.58

From the above Canadian Cases, it can be noted that, if issues of surveillance technologies and

the relationship between private and public are not accurately reflected in judicial reasoning and

policy making, the ability to protect individuals privacy interests will be at risk59.

Constitutional Privacy in Kenya and war on terror

Kenya has been a victim of terrorism before and after 9/1160. After the 9/11 terror attacks in the

U.S, the Kenya Government declared that it had joined the U.S. led global war on terror, which

56 Para. 17. In this context, the hotel room ceases to be a private space when Mr. Wong invites others, strangers, into the room, thus eliminating a privacy interest in the activities conducted in that space. 57 R. v. Tessling. S.C.C. 67. (2004) 58 Tessling, 2004. Para. 27 59 Krista Boa (2007). Privacy outside the Castle: Surveillance Technologies and Reasonable Expectations of Privacy in Canadian Judicial Reasoning. Pg. 15 60 Examples are; the Norfolk Hotel bombing of 1970s, the August 1998 Bomb blast and the December 2002 Paradise Hotel Bombing.


led to unsuccessful enactment of the Suppression of Terrorism Bill, 200361 which flopped as it

was perceived to target Muslims.

Attacks witnessed after Operation Linda Nchi have energized the need for such law, thus the

Publication of the Prevention of Terrorism Bill, 2012

The Bill and Right to Privacy

The Constitution of Kenya, 2010 protects right to privacy against search of their person, home or

property, seizure of possession, unnecessary accusation of their family or private affairs

information and infringement of their communication.62

The broad right of all to privacy is broken down into this non-exhaustive list of facets of privacy

because it foresees a potential infringement by the State of an individuals privacy.

As a way of countering terror through money laundering and terrorism financing, the Bill

prohibits making funds available to a person residing outside the country who is likely to commit

a terrorist act in Kenya, allows police to access bank account details of terror suspects. In this

case, the cabinet secretary for internal security by an order published in the gazette prohibits any

citizen from sending funds to persons or terror organizations.63

According to the Bill, the police can obtain a High Court order to intercept communications by

suspected terrorists which will then be used as evidence in a court of law, including seizing

property believed to be used to commit terror.64

Lastly, it is important to note that, Kenya has no proper legal framework or law relating to

terrorism65 and on the use of surveillance technology in crime investigation by security agents,

hence, no judicial precedent in light of privacy infringement. However, it remains interesting to

see how courts will tackle this issue when it arises.

61 See, Special issue of the Kenya Gazette as Supplement No. 38 on the 30th April 2003 62 Article 31, Constitution of Kenya,2010 63 See the Bill 64Section 31(1) of the Bill and other relevant provisions See, whether the courts while granting the permission to intercept communication will take into account the principle of proportionality or will invalidate provisions in the Bill relating to the right to privacy as unconstitutional. 65 Kenya does not have specific counter-terrorism legislation; instead it uses a mirage of laws to cause arrest, detention and trial of terror suspects.


Difficulties in defending privacy

The following factors make it difficult to effectively and sufficiently defend privacy as a right,

namely:

Minimum standard of privacy: The establishment of a minimum standard of privacy is

not easy to come up with, save for by the legislature and the courts and this would not, on its

own, be sufficient to protect privacy against the encroachment of new technologies.

Time: It still leaves the issue of the time lag between the introduction and the regulation

of new technologies.

Decrease in penalties for unwarranted search: Court precedents have consistently

decreased the penalties for conducting illegal searches.66 These effectively undermine any

incentive for law enforcement agencies to avoid potentially invasive technologies. Instead, these

rulings encourage these agencies to take advantage of all new technologies.

Determining a reasonable expectation of privacy with respect to technologically enabled

surveillance67. Two distinct and opposing approaches exist in three cases discussed on the

nature of privacy in relation to surveillance technology.68 That is whether to determine subject it

to judicial oversight of obtaining a warrant; or only in terms of the individual involved and not

taking into account the social value of privacy generally.

Conclusion

All States have a duty and obligation to protect individuals within their jurisdiction from

terrorists under the International Covenant on Civil and Political Rights (ICCPR). While counter-

terrorist measures are essential for States to maintain national security and ensure safety for all

individuals, these measures must not circumvent international law or violate human rights.

While upholding, promoting and protecting rights and freedoms, the States is not to jeopardize,

infringe, restrict and or compromise any other right(s) or freedom while enforcing or

66 In United States v. Karo (1984), the Supreme Court decided that evidence gathered with an illegal search can be suppressed only if there were no legal way to gather that evidence. In Doe v. Chao (2004), it decided that monetary compensation for privacy invasions could only be claimed upon proof of damages. 67 Krista Boa (2007). Privacy outside the Castle: Surveillance Technologies and Reasonable Expectations of Privacy in Canadian Judicial Reasoning. Pg. 5 68 R. v. Duarte (1990), R. v. Wong (1990), and R. v. Wise (1992)


implementing other rights(s) and freedom(s) unjustifiably. Such as providing security and

infringing on the right to privacy. Thus striking a balance is necessary.

Privacy must be protected under a rigorous analytical framework that secures that any

restrictions are adequately provided for in clear and precise provisions of domestic law, while

also ensuring that measures are effective for the purpose they are intended to serve, necessary in

a democratic society and proportionate to the real advantage gained.

In order for States to address possible violations of privacy rights and other human rights, the

international community must ensure that counter-terrorist measures comply with domestic and

international law as opposed to the massive, unjustified, unwarranted, unregulated and continued

intrusion into persons right to privacy, thus infringement of the right. And this can also be

achieved through adopting a universal definition of terrorism as its lack negatively impacts the

ability of the international community to fight terrorism.

Surveillance techniques adopted to counter terrorism may have a profound chilling effect on

other fundamental rights including the right to privacy. Therefore, it is essential that

surveillance measures be monitored to ensure compliance with human rights and protect the right

to privacy. Hence transparency, accountability and judicial oversight are necessary as seen in

Canada.


Bibliography

Legislations

Constitution of Kenya, 2010

The Prevention of Terrorism Bill, 2012

Personal Information Protection and Electronic Documents Act (PIPEDA)

The Reauthorization Act

The Anti Terrorism Act

Canadian Criminal Code

Privacy Act governs

Canadian Charter of Rights and Freedoms, 1982

The US Patriot Act

The Fourth Amendment; Constitution of the United States

Cases

Martin v. UK [2003] E.H.R.L.R. 461

Dalia v. U.S., 441 U. S. 238, 248 (1979).

Olmstead v. United States (1928), 277 U.S. 438, 43 S. Ct. 394.

Katz v. United States (1967), 389 U.S. 347, 88 S. Ct. 507

United States v. Miller (1939), 307 U.S. 174, 59 S. Ct. 816

Kyllo v. United States (2001)

Kaye v Robertson [1991] FSR 62

Campbell v MGN Ltd [2004] 2 All ER 995 (HL); [2004] UKHL 22

Douglas and Others v Hello! Ltd [2005] 4 All ER 128 (CA); [2005] EWCA Civ 595.

Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446

Hunter v. Southam Inc. 2 S.C.R. 145. (1984)

R. v. Wise. 1 S.C.R. 527. (1992

R. v. Duarte. 1 S.C.R. 30. (1990)

R. v. Wong. 3 S.C.R. 36. (1990)

R. v. Tessling. S.C.C. 67. (2004)

Treaties and Conventions

The European Convention on Human Rights,


The United Nations Declaration on Human Rights

International Convention on Civil and Political Rights

Books

Winfield & Jolowicz on Tort 17 edited by W V H Rogers (Thomson: Sweet & Maxwell,

2006) 607-18.

Articles and Journals

Andrew A, What, Me Worry? The Multi-Front Assault On Privacy, 2006, 25 St. Louis

University Publisher. L. Rev. 33

Samuel W. et al (1890), The Right to Privacy Harvard Law Review (1890) cited in

Lisa Austin Privacy and the Question of Technology. Law and Philosophy 22

(2003)119166. pp. 121123.

Darren, C (2002) Electronic Monitoring and Privacy Issues in Business-Marketing:

The Ethics of the Double Click Experience Journal of Business Ethics 35 243254.

Gareth. C et al (2007): Overlooked: Surveillance and personal privacy in modern Britain.

Arthur J. C (2007), Protecting the Social Value of Privacy in the Context of State

Investigations Using New Technologies. 40 U.B.C. L. Rev. 41 67.

Bloustein, E. J (1964): Privacy as an Aspect of Human Dignity: An Answer to Dean

Prosser, New York University Law Review (39): 962-1007.

Benn, S. I (1976): Privacy, Freedom, and Respect for Persons, in J.R. Pennock and J.W.

Chamman (eds.), Nomos XIII: Privacy, (New York: Atherton Press, 1971), pp. 1-26;

Reiman, J (1976): Privacy, Intimacy and Personhood, Philosophy and Public Affairs

Warren, S et al(1890): The Right to Privacy, Harvard Law Review 4: 193-220

Informal summary prepared by the Chairman on the exchange of views in plenary

meeting and on the results of the informal consultations, A/AC.252/2009/L.1/Add.1,

Annex 1, Draft Report,

The Millennium Summit, Note by the Secretary-General, A/59/565, 2004

The U.N. Committee on Counter-Terrorism FES Briefing Paper, p. 10 (15 September

2007).

Peter. K et al (2007): Surveillance technology and law: the social impact: Erasmus

University Rotterdam.


Berkowitz (2002): Packet Sniffers and Privacy: why the No-Suspicion-Required

Standard in the USA Patriot Act is Unconstitutional Computer Law Review and

Technology Journal 2.

The US Government Accountability Office (GAO, Information Security, Radio

Frequency Identification Technology in the Federal Government. Available at:

www.gao.gov/new.items/d05551.pdf.com

Susan N. H (2006), The USA PATRIOT Act and the Submajoritarian Fourth

Amendment, 41 Harv. C.R.-C.L. L. Rev. 67

Besar, X and Emir, C (2006), Privacy & Terrorism Review: Where Have We Come In

10 Years? Journal of International Commercial Law and Technology Vol. 7, Issue 2

Wayne N. R (2006 Who Controls the Past Now Controls the Future: Counter-Terrorism,

Data Mining and Privacy, 43 Alta. L. Rev. 779 823.

Krista. B (2007). Privacy outside the Castle: Surveillance Technologies and Reasonable

Expectations of Privacy in Canadian Judicial Reasoning.

Arthur J. Cockfield, The State of Privacy Laws and Privacy-Encroaching Technologies

after September 11: A Two-Year Report Card on the Canadian Government, 2003-

2004, 1 UOLTJ 325 344.

Jonathan. M (2003), Privacy, Confidence and Horizontal Effect: Hello Trouble 62

Cambridge LJ 444

Privacy and Terrorism

Documents

privacy protection

individual privacy

introduction privacy

basic states of privacy

privacy of ones thoughts

fundamental protection

aspects of privacy5

principal aspects of