Computers, Privacy & the Constitution

Privacy in Electronic Communications is Protected – At Least Presumptively

The Section 10 of the Constitution of Finland affirms that “The secrecy of correspondence, telephony and other confidential communications is inviolable.” Notwithstanding the fore-going, “Provisions concerning the limitations of the secrecy in communications, which are necessary in the investigation of crimes that jeopardize the security of the individual or society or the sanctity of home […] may be laid down by an Act.” Natural persons, not legal entities, are of course the subjects of the fundamental rights and freedoms set forth in the Constitution. The foregoing has recently been used to legitimate restrictions on the right to secrecy in communications – and ultimately even the right to freedom of speech – by way of laying limitations on constitutional rights within legal entities, which in turn however, directly affect the rights and freedoms of natural persons.

Regulatory Changes in the Protection of Privacy in Electronic Communications

The right to privacy set forth by the Constitution will be essentially deprived by an amendment to the Act on Protection of Privacy in Electronic Communications (516/2004, “Privacy Act”) which will come into force in Finland within approximately one month – on June 1st, 2009. The new amendment is based upon the Government Bill 48/2008 passed by the Finnish Parliament on March 4, 2009. The core of the amendment is to set forth rules on community subscribers’ rights to infer with potential misuse of data and/or communications networks. By way of example, the corporate subscriber will have the right to investigate identification data, if it suspects unauthorized leakage of confidential information. Processing of identification data stored in the subscriber’s network requires though adhering to many administrative requirements set forth in the amended Privacy Act, which seek to ensure that processing of identification data is only the ultimate means to protect business secrets and/or authorized use of the network. The subscriber shall restrict the access to and set up policies for handling of its business secrets, and inform the data subjects of said policies in writing. The Act also requires that the subscriber discusses the surveillance procedure together with the data subjects and informs the respective supervising authority, the Data Protection Ombudsman, both of the commencement of the surveillance and the persons allowed to perform the surveillance.

Practical Impact of the New Privacy Act

The new Privacy Act is in deed vast in its scope and not limited to mere corporations. When reading the Act carefully, I was truly surprised that it grants the same surveillance rights in addition to employers, also to any other community subscribers like universities, government authorities, libraries – and according to the definition, why not also to housing companies. Further, it is worth to note, that even though e-mail content can not be investigated under the new Act, its sphere of application is neither limited to surveillance of mere e-mail identification data: The Act effectively enables any community subscriber, such as housing company, to review the data subjects like residents’ traffic data related to e-mail correspondence including the parties to and dates of the correspondence, size of the emails and possible attachments thereto as well as residents’ internet browsing sites, chat messages, use of p2p networks and Skype calls. Similarly, of course, the Act makes it purely lawful for a school to check out whom of its under aged students is distributing material in the Internet over the school’s network which conduct may be prohibited by the terms concerning the use of the school’s wireless network (whether the material is copyrighted or not) and thus within the technical surveillance justified by the Act. Thus the reach of the Act is way vaster than necessary for the original justification behind the Act, tracking down industrial espionage – which may be also conducted from the employee’s personal e-mail account being out of the reach of the Act. Based on the above, it may fairly be claimed that the sphere of data protection in electronic communications is about to diminish and even the place considered as the most sacred – one’s own home – does not guarantee the absence of surveillance by the big brother. Consequently, the possibility of Connecting People brings in the loss of privacy, both within our private lives at home and within our employment or education.

Farewell to the Rule of Law

Considering the above, it was not actually surprise, that the Data Protection Ombudsman held the amendment of the Privacy Act highly problematic. The amendment faced with huge resistance movement also within the general public in Finland supported by many Finnish law professors which saw the amendment as unconstitutional. Namely, the Bill was not handled as a Constitutional amendment even though it clearly invades the basic rights of people. Further, the restrictions on the right to privacy are not clear and probably neither in proportion to the right sacrificed – the first requirements to take into account when the fundamental rights are deprived. Thus, even though surveillance should be justified only under heavy grounds, here the economic force strived ahead of the Constitution.

A wholly other issue is, what is the future impact of the new Act on the perception of the right to privacy within the general public. So far any surveillance of citicenz has been considered as violation of the fundamental right to privacy protected by the Constitution. However, when the public starts over time to thoroughly learn the contents of the new Act and especially the vast freedom it grants to institutions all around us and in relation to all the aspects of our daily lives – employment, education and home – the concept of freedom may start to change in the minds of the general public. What once was an unacceptable evasion of fundamental freedom may become perceived as a “normal” abuse of liberty among the younger generation – even in the North, so far having enjoined the pure snow white reputation of respecting the rights of individuals. Thus, if the law is accepted also within the citizens, in addition to the Parliament, the citizens may also adopt the notion of new and essentially lower standard of privacy in our society – in violation of the rule of law.


Webs Webs

r2 - 05 Jan 2010 - 22:31:36 - IanSullivan
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