Computers, Privacy & the Constitution

Abuse and Attempted Answers to Peer Surveillance

-- By JeanLee - 27 Apr 2013

Peer Surveillance

Our discussions about how governments are benefiting from and using the increasing amounts of information provided by its citizens or the general public through the internet lead me to realize how the mass public is increasingly acting as an extended arm of the police or prosecutors in many ways. From actions that are simply distasteful, to actions that are criminally punishable, handheld devices are used as reporting tools to promptly record and post (publish) various undesirable actions of fellow citizens. In addition to the systematic surveillance in our current society due to the numerous CCTVs, record keeping of communication, commerce, travel etc., modern technology brought about an army of civilian police who willingly participate in governmental surveillance, and the government does not hesitate to make ample use of these resources.

One example would be the recent incident where a hacker (reported to be linked to the hacker collectivist Anonymous) disseminated a list purporting that it included the users of the ‘Uriminzokkiri’ site, a North Korean propaganda site. The list included names, email accounts, IDs and genders of around 2,000 South Korean nationals, who may potentially be found to be in violation of the National Security Law of Korea. This law bans support of North Korea and imposes criminal sanctions. The South Korean government made it no secret that they would be using this list.

Identity Stripping and People’s Court

Peer surveillance is not a new concept, and for many centuries the police force has been using the general public as their eyes and ears, from the traditional ‘Wanted’ signs, to television shows purposed to assist law enforcement in the apprehension of fugitives such as “America’s Most Wanted.”

While modern technology and the internet indeed facilitated peer surveillance, I note that abuse of peer surveillance has been very serious in Korea and sometimes tended to go one step further. Maybe due to the functions and structure of the main search engines in Korea and/or other cultural or societal characteristics, there have been many cases where the tattlers did not stop at merely providing information of misbehavior, but continued to put matters in their own hands. When a controversial issue would arise, in a matter of days or even hours, the so-called “Netizen Investigators” would engage in “Identity Stripping” of the person in question, in a sense that the identity -real name, address, phone number, employer, school, past internet posts, and all other traces one may have left on the internet- is disclosed to the public for condemnation.

This phenomenon was repeated during the recent ‘Uriminzokkiri’ list case mentioned above where Netizens used the names and email addresses provided in the list to reveal the identities of those people.

Of course such identity stripping causes psychological and sometimes material or physical harm to the victims. In some cases the public uproar had a sad resemblance to a witch hunt or communist people’s court. Due process and rule of law set aside, people were sanctioned without a trial, and by a kind of punishment that cannot be found in the criminal code.

Online ‘Real Name’ Statute… Struck Down

In response to these witch hunts which have become a social problem, in 2007, Korean legislatures enacted an Online ‘Real Name’ Statute (Article 44-5 of the Act on Promotion of Information and Communications Network Utilization and Data Protection, etc.) to deter abuse of internet communications. The logic was that if one was required to provide his or her real name and identification number (similar to a social security number) to the website provider that would be traceable if necessary before posting (or even reading posts) on bulletin boards provided by major websites, this would deter people from posting harmful or abusive comments or material. In other words, anonymity of speech on the internet was to be limited in order to enhance better behavior. In a way, this was an unusual attempt to prevent privacy infringements (of the victims of these witch hunts) by restricting the privacy and free speech of the whole country.

The statute faced much criticism from the beginning, due to its limitations to free speech (freedom of expression) which is protected under Korean Constitution. 5 years later, in August 2012, the Korean Constitutional Court unanimously found that the statute was in violation of the country’s Constitution.

The Korean Constitutional Court applies a proportionality test when reviewing conflicting legal interests (freedom of expression v. public interest to prevent privacy of victims) and also applies a principle of least restrictive alternatives when reviewing restrictions of protected rights (freedom of expression). In its ruling , the Court confirmed that the freedom of expression is of utmost importance as it is the backbone of democracy, and found that the statute was over-restrictive and ineffective, thus was not justified in limiting the freedom of expression.

Lesson Learned?

This court ruling is very much welcomed as it finally put a stop to the government’s muzzling, and it also touches on some issue of the difficulty of regulating cyberspace. For example, the internet is a ‘world wide web’ so any attempts to restrict domestic use are largely ineffective and communication media is evolving so fast that any regulations become inevitably outdated in a short period of time.

So then what to do with the witch hunts? Protection of rights comes with their side effects, but as the Korean Court acknowledged, statutory restrictions hardly address the issue when it comes to cyberspace. I believe that in the course of these happenings - the witch hunts, legislation, court rulings, etc. - the society had a chance to educate itself on the importance of protection and respect of privacy in cyberspace. There may be no clean and swift solution to the problem but I am sure that public awareness is increasingly rising regarding these matters in a very positive direction.


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r2 - 14 Jan 2015 - 22:44:49 - IanSullivan
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