Fergus Cassidy

The State we're in

LAST week's Sunday Independent had a masthead banner which read 'Is the State the enemy of freedom'? Inside was a piece by Alan Ruddock, which, while focussing on issues such as having to carry a driving licence, penalty points and random testing for drink driving, pointed to a general fear of the State becoming more powerful.

Alan then drew some strong and significant conclusions: "Layer on top of that the proposal that our telephone records, emails and even the websites we visit should be stored for years and available for scrutiny by the same State officials who have access to every other part of our lives and the concepts of privacy and freedom no longer exist. Electronically tagged by our mobile phones which can pin-point our movements within a matter of feet, we become totally naked before the State and its officials...".

Of course he's right to point out the dangers inherent in the surrender of privacy and other civil rights. But in pointing out these dangers, the impression can be given that people have no control over these matters and must succumb to the trust of the State or fight it. I'm not sure it's quiet that simple or straightforward.

Firstly, technology plays a significant role in privacy rights. Sometimes technology can be the creator or facilitator of the problem in the first place, but it can also be used to re-assert the right to privacy. The important thing is to know the difference between the two.

For example, mobile phones use cellular technology, so that as a user passes from one cell to another there is a need to get clearance. The technology wouldn't work if too many people were using phone in the same cell. At huge public events like Slane, extra base stations are installed to deal with the surge from one small place.

What I'm getting at here is that this type of technology is not designed specifically to identify the whereabouts of users. That is a side effect of the technology used. There is no question of Big Brother diktats being used to design mobile telephone systems.

Those same mobile phones can be purchased in pre-paid form and no name and address are required for their use. While the number can be tracked, that information without the name and address means that a high degree of anonymity is present and lessens the fear of loss of privacy.

Similar proposals are ongoing in the United States with credit cards, where some companies are considering offering pre-paid credit cards that do not require a name and address to purchase. These type of cards are being aimed at a large section of the US population who have a bad credit history or have recently arrived in the country.

The idea is that a card can be bought for $50-$500 and then used as required and thrown away. This idea also appealed to a wide section of ecommerce sites at the height of the dotcom boom. Now while I agree with Alan and other journalists who have rightly tried to bring data protection and privacy on to the agenda - made all the harder by the apparent acceptance of privacy dilution - I am uneasy with the 'State as enemy' approach.

For the simple reason that the law is required to guarantee civil and human rights. They are too important to be left to some self-regulatory or well-meaning approach from one sector or another. So therefore the State is very important as being the only democratic means for law, and therefore rights, enforcement.

As I have mentioned here before the State is not alone in gathering data and information on peoples' lives. Thousands of private sector companies have huge databases which contain the most intimate details of daily lives.

But there is another very serious area of concern here. The workplace surveillance and monitoring of employees' communications has remained untouched by the law. Since computers arrived on workers' desks, but especially since email and access to the internet became necessary, employers haven't been slow in blurring between public and private. In some cases, employees have had to sign an agreement for such monitoring. This has lead some to refer to the 'privatisation of the workplace'.

So this is not the State doing this and journalists are not the only ones to be concerned. A European Union Data Protection Working Party [1] produced a report in May 2002 which makes for very sobering reading. In its 'Working document on the surveillance of electronic communications in the workplace' the report seeks to "provide guidance on the minimum content of companies' policies on the use of email and the internet which employers and workers can take as a minimum".

The report notes that "in the judgements given to date, the European Court of Human Rights has made it clear that the protection of private life enshrined in Article 8 does not exclude [my emphasis] the professional life as a worker and is not limited to life within the home". Article 8 of the European Convention on Human Rights [2] states that 'Everyone has the right to respect for his/her private and family life, his/her home and correspondence'.

Further to that the report states that "three principles can be extracted from the case law on Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms:

a) Workers have a legitimate expectation of privacy at the workplace, which is not overridden by the fact that workers use communication devices or any other business facilities of the employer.

b) The general principle of secrecy of correspondence covers communications at the workplace. This is likely to include electronic email and related files attached thereto.

c) Respect for private life also includes to a certain degree the right to establish and develop relationships with other human beings. The fact that such relationships, to a great extent, take place at the workplace puts limits to employer's legitimate need for surveillance measures."

In the Working Party's conclusions there is no room for doubt: "The Working Party is of the view that online and off-line situations should not [my emphasis] be treated differently without reason and as such emails benefit from the same protection of fundamental rights as traditional paper mail".

That this area has yet to be legislated for in Ireland goes some way to hardening my uneasiness in railing against the State. Because it is urgent that laws are enacted that provide substance and constitutional guarantees wherever and whenever there is a threat to privacy.

I'm not suggesting for a minute that monitoring of email or internet usage by employers is being done for some 'Big Brother' purposes. The consensus is that employers are protecting themselves from abusive use of email and the net. But that doesn't wash against overriding and supreme rights such as Article 8 of the European Convention.

In the absence of any laws (or even agreement) on this issue, it is left to workers themselves to try and protect their privacy as best they can. Using webmail and even software that allows users to bypass a workplace firewall and access the wider internet. But the latter (believe you me) requires some serious manual labour.

The fact that citizens in places like China and Saudi Arabia must resort to similar methods, tells us a lot that is worrying about the right to privacy in Ireland.

It shouldn't have come to this and the State is needed urgently to resolve it.

---------------------------------------------------------------

SOURCES

[1] EU Data Protection Working Party's document titled 'On the surveillance of electronic communications in the workplace'. Released in May 2002.

[2] The European Convention on the Protection of Human Rights and Fundamental Freedoms html