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The Right To Privacy In The Age Of Information Technology

The digital communications revolution has dramatically eased information sharing in today's environment. Digital communication technologies have an essential position not just in every person's life, but also in the life of every state, boosting the capacity of governments, organisations and people to follow, intercept and gather information. Thus, the technical platforms on which the world's political, economic and social life increasingly depends today are not only susceptible to widespread electronic monitoring, but may actually drive it by reducing financial or practical hurdles to surveillance.

Information on the systematic usage in several nations of such exposure of digital communication technology to electronic monitoring and interception is particularly disturbing. As countless examples of overt or covert digital monitoring throughout the world reveal, governmental surveillance is growing from an exceptional measure into a hazardous habit.

Mass surveillance technologies are increasingly entering the global marketplace, increasing the possibility that digital surveillance will spiral out of government control. Few developed countries in this sense have created technology that provide access to almost all of the world's internet traffic, individual phone call records, people' electronic address books and enormous volumes of other digital information. While such actions are presently going place with the agreement of governments throughout the world, states may soon lose their power in this field.

Responding to concerns by Member States and other stakeholders concerning the harmful impact of surveillance activities on human rights, the General Assembly enacted resolution 68/167 on the right to privacy in the digital age. In the resolution, which was approved by 57 Member States, the Assembly stresses that the same rights an individual enjoys outdoors must also be safeguarded online and urges for the right to privacy in the context of digital communication to be recognised and preserved.

It also calls on all States to review their procedures, practises and legislation relating to the surveillance and interception of communications and the collection of personal data in order to protect the right to privacy by ensuring full and effective implementation of all their obligations under international human rights law.

According to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, No one should be subjected to arbitrary interference with his private, family, home or communications, nor to assaults on his honour and character. Everyone has the right to the protection of the law against such interference or attacks. Similar clauses are present in other international instruments human rights treaties.

The right of everyone to privacy, family life, home, communication, or the right to recognition and respect for dignity, personal integrity or reputation is also provided for in legislation at the regional and national level. There is therefore widespread awareness, de jure and de facto, of the essential importance and enduring worth of the right to privacy and the necessity to secure its observance.

There is also the opinion that the tracking of electronically transmitted data can be a necessary and effective action adopted in the legitimate interests of law enforcement or national security when done out in conformity with the law, including international human rights legislation.

However, claims of widespread digital monitoring raise issues about the extent to which such measures conform with international legal norms and if legal protections in tracking this information ought to be enhanced to prevent against human rights violations. In particular, monitoring techniques shall not result in arbitrary or unlawful interference with an individual's privacy, family life, residence or communications.

Governments should take extraordinary efforts to guarantee that the law is safeguarded from such meddling. Practice demonstrates that resolving these challenges needs an assessment of what constitutes an interference with privacy in the context of digital communications. Defining the meaning of phrases arbitrary and unlawful; comprehending whose rights are protected under international human rights law and when.

International human rights law offers a clear and universal framework for the promotion and protection of the right to privacy, especially in the context of domestic and extraterritorial monitoring of information flows, interception of digital communities and collection of personal data. However, the practise of many states demonstrates a lack of proper national laws and/or enforcement, poor procedural protections and inefficient monitoring, all of which leads to a lack of responsibility for arbitrary or unlawful interference with privacy.

In correcting large gaps in the application of the right to privacy, two conditions need to be taken into account. The first is that more and more information concerning domestic and extraterritorial monitoring rules and activities is being discovered. Investigations are underway to gain information on electronic surveillance and the acquisition and preservation of personal data, as well as to examine the impact of surveillance on the enjoyment of human rights. Courts at national and regional levels are evaluating the legality of electronic surveillance policies and procedures connected to its execution.

Any examination of the conformity of surveillance policies and practises with international human rights legislation must take into consideration the dynamic nature of the issue itself. A second related problem is the lack of openness in government actions linked to surveillance policies, regulations and practises, which contradicts any efforts to examine their conformity with international human rights law and to guarantee accountability.

Effectively responding to the issues posed by the right to privacy in the context of current communication technology will need continuous and coordinated multi-stakeholder engagement. This approach should entail conversation with all stakeholders, including Member States, civil society, scientific and technological societies, entrepreneurs, academics and human rights experts.

As communication technologies continue to grow, the participation of the private sector is vital in ensuring that the potential of new technologies is exploited for greater implementation of the human rights embodied in international legal instruments.

Given the above-mentioned conditions, there is an obvious and immediate need to rigorously monitor the conformity of any surveillance policy or practise with international human rights legislation, particularly the right to privacy, by implementing adequate safeguards against any violation. As an urgent measure, States should assess their own domestic laws, policies and practises to guarantee their complete compliance with international human rights legislation.

Where any gaps are discovered, States should take efforts to overcome them, including via the construction of a clear, precise, accessible, complete and non-discriminatory legislative framework. Measures should be taken to establish a structure and practise of independent monitoring, with a particular focus on the right of victims to effective recourse.

The promotion and preservation of the right to privacy in the digital era will encounter a number of key practical obstacles. Building on the early study in this debate on some of these, there is a need for more discussion and research on effective defences of the law, procedural protections, effective supervision and remedies.

An in-depth consideration of these concerns will serve to give further practical recommendations based on international human rights legislation, the principles of necessity, proportionality and propriety in respect to surveillance methods; effective, independent and impartial monitoring; and corrective actions. Further study will also allow corporations to achieve their human rights commitments, including due diligence and risk management controls, and to fulfil their responsibility in delivering appropriate remedies.

End-Notes:
  • Dr. Y. V. Kiran Kumar, Assistant Professor, GITAM School of Law, GITAM Deemed to be University, Visakhapatnam.
  • Dr. Deepthi Rodda, Research Associate, Damodaram Sanjivayya National Law University, Visakhapatnam.

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