Subterfuge: The new standard of privacy

KANISA GEORGE

Ian Fleming's fictional character "Double-O-Seven" has dominated the literary world for decades and has somehow managed to successfully break women's hearts over several generations. Besides the gadgets, guns and Sean Connery's perfect display of masculinity, the James Bond feature allowed us to experience a day in the life of a secret service operative.

In our hero's quest to save humanity, he isn't afraid to use espionage, subterfuge, and data-hacking methods. This is usually done by intercepting communications and accessing data without adequate clearance – in essence, breaching one's right to privacy.

While this makes for an exciting premise on screen, most, if not all of us would be up in arms if our telephone conversations and internet data were a free-for-all.

The right to privacy isn't new to 21st century living. As a matter of fact, by virtue of Article 14 of the Universal Declaration of Human Rights, an individual's right to privacy is protected from being unreasonably interfered with or infringed on arbitrarily. It states that, "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."

Chapter 1 of the Constitution recognises the need to protect fundamental human rights and freedoms. Accordingly, section 4(c) states, … in Trinidad and Tobago, there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely, the right of the individual to respect for his private and family life.

The landscape of the world has changed. And now more than ever, national security is at the forefront of the agenda. In response to threats to national security, most countries worldwide utilise tools to aid in monitoring suspicious activities and regulate the interception of communications by governments, private individuals, and organisations. In a 2006 report on privacy and human rights, it was found that these controls typically took the form of constitutional provisions protecting the privacy of communications, and laws and regulations that implement those requirements.

Because methods of intercepting communication such as wire tapping and electronic surveillance are invasive forms of interference, its limited use is recommended in certain circumstances.

According to the report, in most democratic countries, the interception of communications is initiated by law enforcement or intelligence agencies. However, this is done only after it has been approved by a judge, independent magistrate or high-level official, and generally only for serious crimes. Law enforcement must also show that other methods were attempted during the investigation and were not successful.

In TT, the Interception of Communication Act Chapter 15:08 was enacted to provide a framework for the lawful interception of communications. It allows interception to be used in limited circumstances while ensuring a balance between the State's reach and an individual's right to privacy. Essentially, it provides a fair framework that seeks to protect confidentiality and freedom of communications.

Section 6 (1) of the act states that a person who intentionally intercepts communication in the course of its transmission by means of a telecommunications network commits an offence and is liable on summary conviction to a fine of $500,000.00 and to imprisonment for seven years. This is followed by section 6(2), which outlines the circumstances where one would not be liable under the act. This includes where the communication is intercepted in obedience to a warrant issued by a Judge under section 8 or 11 and where the communication is intercepted by an authorised officer, in the interest of national security, for the prevention or detection of an offence for which the penalty on conviction is imprisonment for ten years and for the purpose of safeguarding the economic well-being of the State.

An essential regulatory measure imposed by some countries and encompassed in section 24 of TT's legislation is the requirement for annual public reporting of electronic surveillance by government departments. These reports typically provide details about the uses of electronic surveillance, the types of crimes they are authorised for, duration and other information.

Yet, even with numerous safeguards in place, wire tapping abuses have been revealed in quite a few countries. Opponents are fearful because they believe these abuses affect anyone of interest to the government, and targets political opponents, student leaders and human rights activists.

Our right to privacy isn't absolute. But with legislation and other mechanisms in place, can we at all be satisfied that our liberty is being protected?