Privacy-security: a precautionary principle is needed

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Unless politicians commit to tackle privacy as a policy issue, complying with the precautionary principle and bringing such discussion to an international forum, promises made will be like the words of a lover perfectly aware of not believing in what he says to his beloved, argues Giovanna De Minico.

Giovanna De Minico is Professor of Constitutional Law and of Information law at the  “Federico II” University in Naples, Italy and a visiting professor at the London School of EconomicsEnglish version by Antonio Enrico Buonocore

What kind of rights will the new year bring us? I will only look at the right to privacy and at what remains after the Datagate.

A short summary may be in order: there have been some revelations by Mr. Edward Snowden, the trawling the NSA made of the extrinsic data, belonging not only to American citizens and concerning even those not suspected of terrorism, then the expansion of tapping procedures to the Chiefs of State of some US allies and the latter’s indignation for having been treated like unfaithful terrorists.

Now, citizens all over the world expect two things.

First of all, privacy should be handled as a policy issue and, because of that, should not remain in the backyard. The conflict between security and privacy can be traced back to the widest clash between the current emergencies and the protection of basic liberties.

Therefore, when the rule of law is present and upheld, damaging a right should be allowed only if a greater value is effectively threatened with aggression. Such a principle, called the precautionary principle, has been disregarded in what happened in the USA, since the data were acquired by the NSA without any proof that the people involved were suspected of any misconduct.

Even a very recent ruling by the Court of the District of Columbia (the Clayman v. Obama case) issued on December 16, 2013, stated that any investigative power, if bereft of real suspicions, is against the IV Amendment of the American Constitution.

“The right of the people to be secure in their persons, houses […] against unreasonable searches and seizures, shall not be violated , and not warrant shall issue, but upon probable cause,” it reads. 

The point is not so much about what is written in the Patriot Act, a measure which, apart from being unconstitutional, somewhat ties the powers of the NSA to an effective danger to be avoided, as about  how said powers were exercised.

It must be said that even the response the Obama administration gave to the first expectation of citizens has been unsatisfactory: from the “Liberty and security in a changing world”  report (issued on December 12, 2013 by the Review group on intelligence), the conditioning of NSA powers to the precautionary principle and its undertaking a several juridical scrutiny still have to be adequately defined.

The second expectation citizens have is that the state of  emergency/liberty querelle should be sorted in a supranational way, given the fact that tackling a phenomenon without boundaries such as terrorism and regulating communication tools without any territoriality, such as the Internet, an adequate balance must be struck between rights and security, letting everyone involved having a say on the matter.

The Heads of State and government gathered at the UN gave birth, after a strenuous “gestation”, to a Resolution titled “The right to privacy in the digital age” (issued on November 25, 2013).

Its  juridical value notwithstanding, this Resolution does not aim to the stars, not even in its intentions, something it could have done, being simple lip service. The answer of the EU to such a matter has been likewise disappointing. In rewriting from scratch its regulation on privacy, Brussels did not say what it could have concerning data transfers abroad , not submitting said transfers to the stringent condition of equivalence between the transferor and transferee State.

To be more precise, no univocal position may be noticed on the EU side: while the Commission is in fact deaf to the request of enhanced privacy protection clashing with the need to protect security, the European Parliament is of different persuasion, as shown by the  LIBE Committee report on the matter by MEP Claude Moraes (for further information, please see here).

This document does in fact asks for the draft Regulation on privacy to be modified on the rules of data transfer to third Countries ensuring, if not the  perfect equivalence between the transferor and transferee State, the warrant of an adequate equivalence of juridical treatment at the very least.

Since prescribing a rule is not enough for it to be respected, the aforementioned LIBE document entrusts such controls to the existing  antitrust national and European authorities themselves, thus excluding the need to create another one ad hoc from scratch.

The latter point qualifies towards the effectiveness of juridical means. In what seems a theatrical representation of actual or fake indignation, Italy stands with its head above water, as its Prime Minister stated he believes the reassurances of the USA about not having spied on the country, thus getting an alibi to delete the issue from his political agenda.

Getting back to square one, what tangible promises do governments gave us for 2014? A sincere political commitment to tackle privacy as a policy issue, complying with the precautionary principle and to discuss such an issue within an international gathering.

Should this not happen, such promises would be like the words of a lover perfectly aware of not believing in what he says to his beloved.     

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