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Right to Privacy - Changing Perceptions
Overview

'Privacy' is concerned with a man's dignity and liberty. It is a fundamental human right guaranteed by international laws. It has been an inalienable and integral part of human life since long. Initially, it had a very narrower scope as such thought to be included only 'right to be let alone'. Later, the increasing maturity levels of the democratic systems, rapid strides in science and technology, made its scope more wider. Now the right to privacy covers many aspects such as, freedom of thought, control over one's body, identity, solitude in one's home, control over self information, freedom from surveillance, protection of one's reputation, and freedom from searches and seizures etc. The USA is the motherland of right to privacy. Privacy's origin can be traced back to an article written by Warren and Brandy published in 'Harward Law Review' in 1890, in which the concept of Right to Privacy was discussed in detail for the first time. The popular, pioneer cases on the Right to Privacy i.e., Plessey vs. Fergusson -1896 and Paolo Pavesich vs. New England Mutual Life Insurance company-1905 of the USA, reflect the nascent stage and represent the foundations of right to privacy.

There are strong legal bases for the right to privacy in international law. Article 12 of the Universal Declaration of Human Rights 1948, Article 14 of the International Covenant on Civil and Political Rights 1966, Article 16 of Convention on Rights of the Child of the United Nations 1989, Article 14 of the United Nation's Convention on Migrant workers 1990 speak about the Right to Privacy. In addition to this, a number of regional legal instruments also recognised the Right to Privacy. They are, Article 8 of the European Convention, Articles 11 and 14 of the American convention on Human Rights 1978, Articles V, IX and X of the American Declaration on Rights and Duties of Mankind. The Organisation for Economic Co-operation and Development (OECD) framed certain guidelines pertaining to privacy protection and transnational transmission of personal information. The European Union Council too made some minor efforts through its data protection directives to establish data protection regulations. In India, though this right is not explicitly mentioned in the constitution, it is interpreted by the Supreme court to be implied in the Article 21 (right to life) of the Indian Constitution. This has been repeatedly reiterated in a number of cases such as Kharak Singh vs. State of Uttar Pradesh (1963), Gobind vs. State of Madhya Pradesh (1975), R. Rajgopal vs. State of Tamilnadu (1994) and Peoples Union of Civil Liberties vs. the Union of India - 1997 (telephone tapping case). The Apex court acknowledged the privacy infringements in these cases.

The 'Right to Privacy' has assumed much importance with the emergence of internet, bio-banks (gene bank etc.,) business process outsourcing, knowledge process out sourcing, development of software industries, enactment of antiterrorist laws, deterioration of the law and order situation, rising levels of crime rates (theft and fraud cases etc.) These developments led to the rampant privacy invasions. Despite its legal guarantee as a basic human right, it is invaded incessantly by the individuals and institutions. The 'internet' has penetrated into every sphere of human activity. It is intricately and inextricably connected with the day-to-day life of the present day Netizens. Modern man's life has been changed drastically and all his transactions have become more internet-based, internet-dependent in this global village. Personal information of an individual in this internet age is not just confined to four walls, or in our traditional desk, but is connected to the vast networked internet system. This is leading to privacy invasions. Most of our day-to-day transactions (financial, medical, school/college etc.,) are no more secure now. Our personal information is tracked, stored and later mis-utilized in the manner we do not wish often without our knowledge or consent. The law enforcing authorities too, under the veil of combating terrorism are infringing the innocent individual's Right to Privacy through their acts such as, phone tapping, surveillance of private lives and searches and seizures without complying necessary legal formalities etc.

The basic philosophy of this Right to Privacy is that every individual has a legal right to enjoy privacy over his person, property, territory and information so long it do not come in the way of the larger interests of the society. No body should disturb his privacy even the governments, unless warranted by law. Even in inevitable interferences, observance of certain norms, taking due care is a must in situations where the acts of the State are likely to invade the privacy of the individuals. In other words, striking a harmonious balance between the individual's Right to Privacy and collective interests of the society at large such as nation's security, law and order maintenance is crucial and vital.

This Book deals with nine articles that touches various facets of the right to privacy such as, its origin and evolution, unique and dual impact of spam mails, the privacy issues affecting various parties at employment setting, the unregulated DNA and its ramifications, norms for camera surveillance in Netherlands, implications of USA's Patriot Act on cyber privacy of the individuals, examination of the Right to Privacy in countries of Asia-pacific region and a comparative study of the USA and India pertaining to the Right to Privacy.

The article "Controlling Identity: Plessy, Privacy, and Racial Defamation" by Jonathan Kahn discusses the initial notions of Privacy, its origin, two popular, pioneer case laws, involving racial discrimination. This article further examines the identity status of the blacks in USA's legal tradition and explains as to how the people belonging to white race are exercising control, through power, over the blacks (colored) infringing their Right to Privacy. This article highlights the need for control over one's racial identity.

Donald R. Wolfensberger, in his article "Congress and the Right to Privacy: An Introductory Essay" neatly sketches the role of the US Congress and the senators contribution in evolution of various privacy protection laws in the USA. The author is of the firm view that existing safeguards have become outdated with the emergence of new technologies such as fiber optics, satellite technologies etc. The most common invasions, various Privacy protections in this direction including the laws enacted so far are well illustrated by the author, striking balance between individual liberty and nation's security has become a gigantic challenge today in the USA.

Sjaak Nouwt, Berend R. Devries and Dorus van Der Burgt in their article "Camera Surveillance and Privacy in the Netherlands" discusses the important privacy protection laws in the Netherlands, the provisions and prohibitions provided therein, the usage of cameras in public places and private places and in non contractual relation ships. Grounds governing the usage, judiciary's justifications for the same are neatly illustrated. The authors opine that, the usage of cameras in all the above places are justified provided the interests of both the parties are balanced.

Soon Chul Huh in his article "Invasion of Privacy vs. Commercial Speech: Regulation of Spam with a Comparative Constitutional Point of View" critically examine the implications of present day popular Spam mails (unsolicited) flooding the email inboxes of the receiver invading his Right to Privacy. The author neatly explains a unique situation wherein, constitutional rights of both the receiver's Right to Privacy and the sender's right to commercial speech conflicts. Moreover, negative consequences of Spam mails, its regulatory methods, differing opinions on the legal character of the e-mail inbox are well accounted in this article.

The article "Privacy Issues Affecting Employers, Employees and Labor Organizations" by Charles B. Craver, beautifully narrates as to how the legally allowed 'collective bargaining system' causes privacy concerns and how various parties i.e., employer (company), employee and third party (customer) gets affected in the event of disclosure of confidential information by the employer. It also discusses the employer monitoring of the employees activities, prescribing mandatory medical tests, administration of polygraphs tests etc. The author finally recommends to balance the interests of various parties with some suggestions.

"Reclaiming "Abandoned" DNA: The Fourth Amendment and Genetic Privacy" by Elizabeth Joh explains the rationality for the popularity of DNA usage in the crime investigation. The author expresses his grave concern for the absence of suitable laws regulating DNA samples procured by the law enforcing authorities for crime investigation purposes. The author expresses his apprehension that there is every possibility of its misuse in this contemporary commercial world and further opines that the existing provisions both in constitution and criminal law and the 'fourth amendment' privacy protection measures do not suffice to meet the challenges being posed today. He strongly feels for the immediate enactment of full fledged, detailed exclusive laws governing the usage of abandoned DNA in order to prevent further privacy violations.

The article "Impact of USA Patriot Act on Cyber Privacy: A Revisit" by Basanth T discusses the USA Patriot Act 2001(an anti terrorism legislation) and its adverse impact on the innocent citizen's cyberspace privacy in the USA. The author describes elaborately the gross misuse and abuse of ample statutory powers by surveillance authorities invading the privacy of the innocent individuals. Various controversial provisions under the Act and its adverse impact on the privacy of the innocent individuals, information disclosure agents, the most common invaders, and privacy protection tools of cyber privacy are well accounted in this article.

The article "Asia-Pacific Developments in Information Privacy Law and its Interpretation" by Graham Greenleaf neatly sketches the important international instruments and institutions affecting the emergence and executions of privacy laws in countries of Asia-pacific region. It also discusses briefly the 'Montreux declaration (Switzerland) 2005, and the agreement, commitments made therein by the privacy commissioners of APEC member nations to chalk out common strategies and to work together for privacy protection. This article critically examines and evaluates the APEC's framework for privacy protection and the role of United nations, the impact of European Union's directive on APEC's privacy policies etc.

Ponnurangam Kumaraguru, Lorrie Faith Cranor, and Elaine Newton in their exploratory article "Privacy Perceptions in India and the United States: An Interview Study" critically analyses the differing levels of perceptions, concerns, views and awareness between the citizens of USA and India. This research study touches other dimensions too such as existing regulatory environment, cultural differences, methodology adopted, type of interviewing the interviewees, contents of the questionnaire, demographic subjects taken, concern on identity theft, knowledge of need for privacy laws etc., in both countries.

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