The Right to Privacy and Protection of Personal Information
Private life (privacy) is a fundamental human right, acknowledged in the UN Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and many other international and regional agreements. Privacy lies at the foundation of human dignity and other key values, such as freedom of assembly, freedom of conscience, freedom to create trade unions, and freedom of speech. Privacy has become one of the most meaningful human rights in modern times.
Almost all countries of the world acknowledge the right to privacy in their constitutions. As a minimum, these constitutional norms include the right to the inviolability of dwelling and secrecy of communication. In some new constitutions there are also mentions of limitations to the right of access to personal information.
According to Article 17 of the International Covenant on Civil and Political Rights, ratified by Kazakhstan:
- No one shall be subjected to arbitrary or unlawful interference with his privacy, family, or correspondence, or to unlawful attacks on his honor and reputation.
- Everyone has the right to the protection of the law against such interference or attacks.”
In 1988, in its thirty-second session, the UN Human Rights Committee passed the “General Comment No. 16” to this article of the ICCPR:
Article 17 provides for the right of every person to be protected against arbitrary or unlawful interference with his privacy, family, home or correspondence as well as against unlawful attacks on his honor and reputation. In the view of the Committee this right is required to be guaranteed against all such interferences and attacks whether they emanate from State authorities or from natural or legal persons. The obligations imposed by this article require the State to adopt legislative and other measures to give effect to the prohibition against such interferences and attacks as well as to the protection of this right . . .
- The term “unlawful” means that no interference can take place except in cases envisaged by the law. Interference authorized by States can only take place on the basis of law, which itself must comply with the provisions, aims, and objectives of the Covenant.
- The expression “arbitrary interference” is also relevant to the protection of the right provided for in Article 17. In the Committee’s view the expression “arbitrary interference” can also extend to interference provided for under law. The introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims, and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances . . .
- As all persons live in society, the protection of privacy is necessarily relative. However, the competent public authorities should only be able to call for such information relating to an individual’s private life the knowledge of which is essential in the interests of society as understood under the Covenant . . .
- The gathering and holding of personal information on computers, data banks and other devices, whether by public authorities or private individuals or bodies, must be regulated by law. Effective measures have to be taken by States to ensure that information concerning a person’s private life does not reach the hands of persons who are not authorized by law to receive, process and use it, and is never used for purposes incompatible with the Covenant. In order to have the most effective protection of his private life, every individual should have the right to ascertain in an intelligible form, whether, and if so, what personal data is stored in automatic data files, and for what purposes. Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control their files. If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law, every individual should have the right to request rectification or elimination.”
International practice in the area of protection of privacy and personal information is leading in the direction of the passing of special laws designed for the protection of an individual’s privacy.
The main reasons for the substantiation of the necessity to pass such legislation are:
- The necessity to correct mistakes of years gone by. The adoption of corresponding legislation allows the correction of the consequences of human rights under totalitarian regimes of past years;
- The promotion of the development of electronic business. Legislation concerning privacy is included in packages of legislation directed toward the establishment of unified regulations of electronic trade;
- The guarantee of compliance of national legislation to international circumstances.
Nevertheless, international experience in the passing and realization of legislature and other forms of protection shows that the violation of privacy, as always, remains a large problem. In many countries lawmakers do not keep up with technical processes, and this leads to the appearance of large gaps in the area of protection of human rights. Sometimes, law-enforcement organizations and special services prove to be endowed with exclusive power. Eventually, in the absence of proper control of the execution of the law, the existence of the law in itself does not yet mean active protection.
In many democratic countries, human rights violations in connection with the control of communication are widespread.
Even in countries with strict laws regarding privacy, law-enforcement agencies even so keep a large dossier on citizens who are not accused of anything and are not even suspected of the committing of crimes.
As a whole, the protection of the right to privacy has many threats.
The complexity of information technology increases continually. New methods of collecting, analyzing, and distributing information on private individuals are emerging, and this compels consideration of the urgent introduction of corresponding legislature. Recent research in the area of medicine and health care, telecommunications, and the many means of transportation and transfer of financial resources has significantly increased the quantity of attainable information on each individual. Powerful computers connected by high-speed lines may be used for the compilation of a detailed dossier on any member of society, and for that a central mainframe computer is not required. New technology, developed originally for defense needs, is used for the armament of law-enforcement agencies, governmental structures, and private companies.
As shown in surveys of public opinion, people in many countries of the world are now more afraid of the violation of privacy than at any other time in modern history. Entire groups of citizens in various countries express their concern about the invasion of their privacy, and this compels ever greater numbers of governments to pass legislation especially designed to protect privacy.
Today, it is evident that information technology develops with enormous speed. Opportunities for the invasion of privacy – or, at least, potential opportunities – also are increasing.
In addition to these obvious aspects, there are a whole series of important factors affecting the violation of privacy:
Globalization, that is, the disappearance of geographical borders to the flow of data. The development of the Internet is possibly the most well known example of this.
Convergence, that is, the destruction of technological barriers between systems. Contemporary information systems freely interact, and can exchange with each other and process various types of data.
Multimedia, that is, contemporary forms of presentation of data and images, presented in one format, may be easily converted into another format.
Under these conditions, corresponding international tendencies and contemporary summons for legal regulations guaranteeing the right to privacy are necessary.
Of all human rights which are well known in international legislature, privacy is the most complicated to determine and classify. The definition of privacy varies widely depending upon circumstances. In many countries, the conception of privacy is restricted to the protection of information (privacy is interpreted in terms of protection of personal information). Outside of these sufficiently strict frameworks, privacy often is considered as a boundary over which society should not cross, interfering in private life.
In this case, privacy can be divided into:
Informational privacy, which includes the regular gathering and processing of personal data, such as banking or medical information;
Physical privacy, pertaining to the protection of the physical integrity of a person from outside interference, such as investigation by internal organizations;
Privacy of communication, which means the safety and inviolability of postal messages, telephone conversations, electronic messages, and other forms of communication, and also
Territorial privacy, including intrusion of residences, and also of the work place and in public areas.
At the heart of contemporary models guaranteeing privacy lays the principle of “the protection of rights.” In compliance with this principle, the State is obligated to provide legislative protection of the personal information of its citizens.
This legislative protection should touch upon:
- The use of personal cards or files, which to one extent or another are used in practically all countries of the world. The type of card, its purpose, and the amount of information varies and the personal information contained in them is used for various purposes. Systems for collecting information may be aimed at the fight with extremism or terrorism, or may be simply a part of the national registration system. A national identification system requires strengthening of its protection of privacy.
- Biomeasurement, that is, the process of collection, processing, and storing of data regarding physical characteristics of a person for the purpose of his identification. The most popular biomeasurement systems are retinal scanning, fingerprinting, dactylyscopy, voice-recognition, and digital (stored in electronic format) photography. Biomeasurement is attracting the attention of governments and private companies, since, unlike other forms of individual identification (cards or documents), it ensures full and accurate identification. In this regard, DNA identification technology causes the most controversy. It uses the latest technological achievements, allowing within a few minutes the comparison of DNA analyses with an enormous database. This also requires an effective means of legislative protection of privacy.
- Monitoring of communication, inasmuch as practically in every country there is the possibility of monitoring telephone, telex, and telefax communications. In the majority of cases, this monitoring is done at the initiative and with the direct participation of law-enforcement agencies. Unlawful access to communications exists in the majority of countries, and the volume of information obtained in such manners reaches enormous proportions. Law-enforcement agencies traditionally work together with telecommunication companies in order to make monitoring systems for telephone conversations “convenient” for use at a distance. These agreements have the appearance of providing special service access to communications to the extent of the installment of systems for the automatic recording of information. Legislative limitations to such activities are necessary for the guaranteeing of privacy and the protection of the human right to a private life.
- Interception of Internet messages and mail. In recent decades the Internet has become the most important means of communication and research. Technology develops by the exponent, and the quantity of users increases each year by the millions. The Internet is used more and more in commercial operations. The abilities, speed, and security of the Internet constantly increase, and together with them the quantity of new approaches to using the Web. But this flexible structure is not protected from intrusion and monitoring by authorities. Inasmuch as computer networks are a relatively new phenomena, for them legislative rights similar to those that have been approved for the regulation of telephone rights have not yet been created. Law-enforcement agencies and national security services in all the world are working on developing systems of interception and analysis of electronic mail and all information conveyed through the Internet. In this situation privacy guarantees are also necessary.
- Video surveillance. In recent years the use of video camera surveillance has been accepted worldwide on an unprecedented scope. Their use in the private sector has become more and more popular. These systems are based on complex technology, including night vision, computerized control, and motion sensors (the system can be programmed so that an alarm signal will sound if any motion takes place in the camera’s field of view). It would be well to note that hidden video surveillance in some places could be done without any sound. The use of such video surveillance also should be subject to legislative regulation with the aim of protecting privacy.
- Surveillance at the work place. Workers in practically all countries are subject to careful observation on the part of management. Legislative protection, as a rule, in such instances is little, because observation often is one of the conditions for acceptance to work. While companies strive to legalize this monitoring, it is becoming clear that not all of its forms are actually legal. In this connection, legislative limitations on video surveillance and the definition of the responsibilities of employers to coordinate such issues with their workers are necessary.
Kazakhstan’s legislature contains a series of norms relating to the protection of privacy.
First, Article 18 of the Constitution of Kazakhstan states:
“1. Everyone shall have the right to inviolability of private life, personal or family secrets, protection of honor and dignity.
2. Everyone shall have the right to confidentiality of personal deposits and savings, correspondence, telephone conversations, postal, telegraph, and other messages. Limitations of this right shall be permitted only in the cases and according to the procedure directly established by law.”
Second, Article 25 of the Constitution of Kazakhstan states:
“1. Housing shall be inviolable. Deprivation of housing shall not be permitted unless otherwise stipulated by a court decision. Penetration into housing, its inspection and search shall be permitted only in cases and according to the procedure stipulated by law.”
The further inviolability of privacy is indirectly protected by remedial legislation.
According to Article 16 of the Criminal Procedure Code of Kazakhstan:
“Private life of citizens, personal and family secrets shall be under the protection of the law. Everyone shall have the right to secrecy of personal savings and investments, letter exchange, telephone conversation, postal, telegraph and other communication. The restrictions of these rights in the course of the criminal procedure shall only be allowed in the cases and in accordance with the procedure directly established by the law.”
The basis and procedure for the seizure of correspondence, the interception of communication, and the listening to and recording of telephone conversations are stated in Articles 235-237 of the Criminal Procedure Code of Kazakhstan.
According to Article 17 of the Criminal Code of Kazakhstan: “Housing shall be inviolable. The penetration of housing against the will of people who occupy it, the performance of its inspection and search shall only be allowed in the cases and in accordance with the procedure established by the law.”
The basis and procedure for the penetration of housing for the performance of its inspection and search are stated in Chapters 27 and 29 of the Criminal Procedure Code of Kazakhstan.
According to Article 10 of the Civil Procedure Code of Kazakhstan: “Private life of citizens, personal and family secrets shall be under the protection of the law. Everyone shall have the right to secrecy of personal savings and investments, letter exchange, telephone conversation, postal, telegraph, and other communication. The restrictions of these rights in the course of the civil procedure shall only be allowed in the cases and in accordance with the procedure directly established by law.”
Finally, according to Article 18 of the Code of Administrative Procedure of Kazakhstan (CAP RK): “Private life of citizens, personal and family secrets shall be under the protection of the law. Everyone shall have the right to secrecy of personal savings and investments, letter exchange, telephone conversation, postal, telegraph and other communication. The restrictions of these rights in the course of the procedure for administrative offenses shall only be allowed in the cases and in accordance with the procedure directly established by the law.”
In Articles 142, 143, 144, and 145 of the Criminal Code of Kazakhstan, criminal responsibility is established correspondingly for the infringement on the inviolability of privacy, unlawful violation of the secrecy of letter exchange, telephone conversations, postal, telegraph, and other communication, the unauthorized disclosure of medical information, and the infringement on the inviolability of housing.
Nevertheless, the given legislative norms are not sufficient to ensure the guarantee of the observation of these rights by all governmental agencies, private individuals, and organizations. Administrative legislation altogether does not contain articles directly relating to accountability for the violation of the rights of a citizen to privacy.
Accountability for the refusal to provide information (Article 84 CAP RK), the dissemination of information regarding guilt prior to a valid guilty sentence of the court (Article 86 CAP RK), or accountability for the violation of disturbing the silence (Article 333 CAP RK) are difficult to relate to measures for the protection of the right to privacy.
In connection with this, in order to bring legislation into compliance with international standards in the area of protecting the right to privacy, it is necessary to adopt special legislation that would guarantee protection from both legal and unlawful and arbitrary interference, as is reflected in the UN Human Rights Committee General Comment.
It is necessary that Kazakhstan’s legislation contain a definition of all the concepts used in Article 17 of the ICCPR, in compliance with the recommendations of the UN Human Rights Committee and international practice.
For example, the concept “housing” should for this purpose be defined not only as the place where a person lives, but also where he carries out routine business, including the work place.
It should be noted that the infringement on the right of a citizen to the inviolability of his private life and personal and family secrets by Kazakhstan’s Customs agencies is often met in practice. In particular, these violations point to the Customs regulation currently in force on the mandatory submission by citizens of videocassettes, audiocassettes, discs, and photographic film that they have brought into the country to preview them for forbidden information.
In the opinion of the project work group, these Customs agency requirements evoke the valid censure of citizens by virtue of the difficulty of their fulfillment and contribute to corrupt violations of the law on the side of Customs agency workers.
A survey conducted by the Association of Sociologists in Kazakhstan among 1,500 respondents showed that 19% of those surveyed gave a negative assessment of the situation in the area of the protection of the right to inviolability of privacy. 65.3% of those surveyed gave a positive assessment of governmental mechanisms of protection of the right to inviolability of privacy. 15.7 % of those surveyed were at a loss how to answer. As a whole, the results of the sociological analysis of the situation with the protection of the human right to inviolability of privacy allows the conclusion that governmental mechanisms for the protection of the right to the inviolability of privacy are improving, taking into consideration
Kazakhstan’s international obligations in the sphere of human rights, with the exception of some instances of the violation of the law and human rights by individual officials or other persons.
In conclusion, it is necessary to determine which agencies are responsible for the protection of the right to privacy, and which effective procedures exist for doing so.