Computers, Privacy & the Constitution



The boundaries and content of what is considered the private domain which ought to be protected from state (or private) intervention vary between political and social cultures. The right to privacy may underpin different key values. Many believe that the connection between the values of Liberty and Human Dignity to the right to privacy is essential for understanding the right's meaning (see Robert Post, Three Concepts of Privacy and James Whitman, Two Western Cultures of Privacy: Dignity versus Liberty). Liberty and Human Dignity are both core values which are considered to be the foundation of modern democratic societies. Liberty is the founding value of the American Revolution and has an important role in the United States' constitutional scheme. Human Dignity was rooted in the theological concept of the human creation in the image of God and, in the modern context, mainly functions as an extension of the Kantian Enlightenment-era concepts. It became a constitutional right in post-World War II constitutional democracies.

Dignity versus Liberty in Privacy Context

A Liberty-based-right to privacy would be established on ideas of individual will and consent, while a Dignity-based-right to privacy rests on recognition of the person’s physical and mental integrity, his humanity, and his value as a person. This distinction is not merely theoretical, it also has practical implications. Individuals may approve certain actions which would infringe their Dignity. A voluntary slavery might pose less Liberty concerns than Human Dignity ones. Take also, for instance, the issue of private databases. Nowadays more than ever before, sensitive personal information is being held by private companies. A right to privacy based on freedom from state intervention will not raise much concern in this regard. Also, the mere holding of personal data that bear minor burdens on individual's daily conduct and that is being held under prior consent, would not be very problematic from a Liberty-based-right to privacy perspective. Yet, from a Dignity perspective, databases may raise concerns by their very existence. The treat here is not only the possibility of abusive use, but rather the mere intrinsic violation of the Dignity of human beings who became commoditized objects.

The Israeli Constitutional Dignity-Based-Right to Privacy: from Theory to Reality

Until 1995, Israel was not considered to be a constitutional democracy (see CA 6821/93 Bank Mizrahi). The right to privacy was mainly protected by the 1981 Israeli Privacy Protection Act (PPA). Initially, the courts adopted a narrow interpretation of the Act. However, the enactment of the 1992 Israeli Basic-Law: Human Dignity and Liberty initiated a new constitutional era in Israel, under which Human Dignity became the corner stone of the Israeli Bill of Rights. This "Constitutional Revolution" led the courts to recognize a broader scope of protection for the right to privacy, one which is highly connected with Human Dignity. For instance, while in 1988 the Supreme Court held that obtaining an evidence against a suspected of possessing drugs by forcing him to drink salt water which caused him to vomited the drug packages do not infringe on his right to privacy (see FH 9/83 Vaknin [Hebrew]), in 2006 the Supreme Court ruled that photographs showing the woman having sexual relations with another man cannot be submitted by her husband as evidence since they infringe on the wife's right to privacy (see HCJ 6650/04 Doe [Hebrew]). These different approaches reflect different constitutional eras. The first era, one of a narrow statutory right to privacy, and the second era, one of a broad constitutional Human-Dignity-based right to privacy. By this instance, the Israeli right to privacy then started to become closer to the continental paradigm than to the Anglo-American tradition (see Omer Tene, The Right to Privacy under the Basic Law [Hebrew]).

Although this observation may reflect some of the underlying values of the constitutional right to privacy in Israel, it does not fully reflect the actual extent of the right's protection. For instance, despite the fact that the PPA regulates the holding of private databases by requiring registration of all databases and imposing on database owners various obligations, in fact, only a minor portion of all the databases in Israel are indeed registered (see 2014 Ministry of Justice Report [Hebrew]). In addition, Israeli security services are excluded from some of the obligations imposed by the PPA, including the rules concerning the use of databases. The public is not aware to how security services use the powers granted to them by law. It is impossible to know what type of information is delivered, how often, and how long the information is kept. Furthermore, unlike the surveillance being held outside Israeli borders, which is taken for granted, the public is not aware to the scope of inner-state surveillance and whether this activity includes also listening to Israeli citizens. I will not be surprised if the latter occurs in some degree, as some believe that Israel is exposed to security treats both from members of the Israeli-Arab population and from members of extreme right wing groups.

With this respect, the gap between the scope of the Israeli constitutional Dignity-based-right to privacy and its actual realization is in many ways a result of the Israeli social experience and the security threats and challenges which it faces. In a place where restaurants and public buses are under a serious terror threat, the infringement of the right to privacy by searching one's bugs for explosives would be more tolerable from a constitutional point of view. When many perceive one-fifth of the population as a potential fifth column, based on the fact that they are members of a nation which is in an ongoing conflict with Israel, some degree of surveillance on Israeli citizens might be publicly tolerable as well. Yet, without underestimating the significant risks involved, the lack of public awareness concerning the scope of surveillance within the state's borders and the effectiveness of the judicial, legislative, and executive oversight over it, is ought to be changed.

The draft before us makes no reference to anything real, except the buses, which are significantly only there to be hypothetically blown up by terrorism. All the other nouns refer to intangible legal concepts, or "transitional objects" like the "Israeli Supreme Court," which performs the function of mediating concepts, like "dignity" or "mother-rights" or whatever other Yecce bullshit we are into this week. Not a wire, not a chip, not an algorithm, a handset, a platform, a data-mining outcome, not an anything. Whatever legal thinking is—assuming for a moment that it exists or that we are compelled from politeness to pretend it does—it can only be strengthened by some integration into reality.

If I might make one suggestion about the revision of this draft, then, it would be to have some idea to put in it that is about the subject of our course. Not the constitutional theory we occasionally dropped into just in order that there should not be a wedding without musicians, but the more central matter of what we are making of ourselves and who that is turning us into. Not what the Yale professors thought about privacy at a symposium, but what is happening out there in the actual, where in the instantaneity of less than two generations, the human race is altering its fundamental nature. Some contact with these realities was the point of the course, and it would be valuable to have your thinking in relation to what we were studying together.

-- By OriKivity - 05 Mar 2015


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r5 - 26 Jun 2015 - 20:22:22 - MarkDrake
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