'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.