Right to Privacy
 

1. what is the right to privacy?

¡á Right to be alone

According to the Article 12 of the Universal Declaration of Human Rights, right to privacy means that you should be free in terms of your private life, home, place of residence and communications.
 

Therefore the primary concept of right to privacy is the right to be alone or the right to enjoy own private life without interferences of others. This concept mainly concerns possible interferences in private life. Specifically, the privacy right means as follows;

-       Banning plagiarism: names or pictures should not be commercially used without the consent of the owner.
-       Banning trespassing: no one should break into private properties, eavesdrop private conversation or communication. Pictures should not be taken without the consent.
-       Banning defamation: no one should make any public statements that may cause a wrong impression on the public in relation to a certain individual, or announce what could be unfavorable to an individual.

¡á Right of self-decision, self-control on one's own personal information

Since 1970s, as computer technologies have been actively introduced and developed, people's private lives have been compromised due to exposures of personal information. For example, commercial and advertisement mails have started to flood mailboxes and the number of door-knocking salespeople has increased due to the huge of amount of personal information gathered through whatever means. Thereby, right to privacy came to take on another concept. Now it came to mean the right of self-decision, self-control on one's own personal information.

The 1980 OECD privacy guidelines explain clearly the concept of the right of self-decision, self-control on one's own personal information. ¡®Personal information¡¯ means any information that is distinct enough for others to distinguish the owner of the information such as names, personal identification numbers, letters, voice and images. It also includes information regarding everyday lives, activities and work performances. Even if specific information does not mean anything to others, it should be considered as personal information when it does tell something about individuals once it gets combined with other information.
 

These guidelines have formalized the right to decide and control personal information by oneself by supporting that information should be obtained with the clear knowledge and consent of the subject regarding the purposes of the collection of information. Furthermore, individuals should be informed of the existence of their personal information and have the right to view, correct and request the removal of the information.  

They emphasize that the ultimate right over decisions regarding collecting and usage of personal information should not reside on either governments or firms, which collect personal information, but individuals that is the owner of the information. That is why the OECD recommendation is regarded as meaningful guidelines to human rights in the age of information society.

Since the publication of the guidelines, many governments have introduced similar laws and established supervisory authorities to protect personal information. The UN also adopted its own guidelines concerning computerized personal data files in 1990.
 

In recent years, protecting personal information in the private sectors has been considered as a serious issue.

¡á Anti-surveillance

¡®Surveillance¡¯ has become increased and deeply existed in our life. With the development of computers and digitization, it became possible to reproduce personal information without any restrictions. Therefore, it became virtually impossible to obtain an active control right over the complicated process of information flow. In other words, it is difficult to say that one has a proper control over one¡¯s own information simply by obtaining the right to decide whether to give the consent over collection and usages.

Besides, state-of-the-art technologies allow governments and companies to collect and manage personal information cheaply, rapidly and massively. Governments around the globe are able to watch and analyze the way people think and behave. Also they can even analyze any individual's past and future as well as the present life with the help of study of one¡¯s genetic information.

Experts on the privacy issue defined the surveillance as a system that allow the monitoring party to tell who is violating rules, and take a proper punitive action on those who are responsible. They also viewed it as to collect and manage personal information in order to govern societies. Systematic surveillance causes many problems, which cannot merely be addressed with the right of self-decision, self-control on one's own personal information.

One of the biggest problems with it is that it can violate the basic human rights of the subject. Surveillance involves observation of the subject's everyday life, which allows the monitoring party to understand how the subject think and behave. As a result, the subject would become aware of the fact that he/she is monitored and implant the discipline to restrain him or herself from behaving, thinking and talking freely to avoid possible troubles, which is beyond the concept of obeying rules but possible violation of human rights. In other words, surveillance can violate the freedom of expression, behavior and thoughts. Also it may undercut the democracy because, if a person had to be mindful of a system or society, the power does not come from the people but from the monitoring party¡¯s control. Furthermore, if information gathered through monitoring was used to manage and govern the society, it could go against the will of people including consumers and workers. Another problem is that if

 personal information gathered through monitoring was used as a means to manage and control individuals with a database storing all such information, this would allow governments to categorize individuals. Categorization may allow people to reason their discriminatory behaviors or cause discrimination and exclusion towards a certain group of people. For example, information such as races, place of origin and gender are often used to evaluate individuals, which do not have anything to do with their capability, performance or potential.

Therefore the right to privacy needs to more actively deal with potential threats posed by the systematic surveillance to the principles of democracy and human rights. Anti-surveillance concerns not only the right of self-decision, self-control on one's own personal information but also the right to have a control over the whole process of producing and utilizing such information. It is actively against any activities that may intervene the freedom of expression or behavior of individuals or groups in order to protect human rights.

To support anti-surveillance, we need to go beyond the concept of give-and-take that it is enough to give consent over collecting of personal information or be notified of the use of information for the price of convenience. Such belief would work only when the subject of personal information can offer the information with the equal status to that of who collects information. However, such consents or notices are not always requested in modern surveillances. For example, surveillance cameras in the streets do not obtain the agreement of passers by whose photos are taken. Even if you had made the consent or received a notice regarding the use and collection of your personal information, no further measures are normally undertaken regarding new technologies or new purpose of use and collection of such information, which can have more invasive effects on subjects. Besides, citizens and workers are already living in an unfair social system where they cannot get a job without giving consents to governments or companies regarding collection of their personal information and surveillances.

Recently, there are an increasing number of cases where the database established through these means is used to categorize citizens according to the potential of being terrorists or pickpockets and results in a violation of human rights.

So, supporters of anti-surveillance argue that citizens and workers should be able to take an active role and control over the whole process of surveillance. They claim that people should participate from the planning stage of personal information management, which could affect the principles of democracy and human rights.

One possible solution could be an introduction of a system that rates how much the surveillance affects people¡¯s privacy. Under this system, any new technologies those are likely to invasive to right to privacy would be evaluated before they get introduced, and the decision regarding the introduction would be dependant on the result of the evaluation. Recently more workers believe that they should be allowed to take part in producing their personal information in the labor process and should not regard the information as the only measure to evaluate workers¡¯ performance.
 
2. Right to Privacy VS Government's Surveillance

¡á Identification systems

Recently, many countries are adopting various kinds of identification systems. As such systems become electronic and include even genetic information, there are concerns that those systems might be used as a means to control people.

Of course, one can hardly imagine any society without some kinds of identification systems. Modern nations have introduced various kinds of identification systems in order to define the extent of their people, thus they could provide the welfare services to their people. Now most governments have the national identification cards system in place. However, some of such modern systems pose threats to human rights, because they may involve a compulsory registration, and collection of excessive amount of information and physical information such as fingerprints.

Among them, the compulsory registration poses a serious threat to human rights. Some governments including South Korean government have the compulsory registration system that people are subject to punishment or penalty if they fail to register with the government offices. In fact, a proof of identity should be presented in other ways the subject want such as using medical insurance cards. For the purpose of offering the welfare services, it would be enough to let local authorities to carry out non-compulsory measures such as the resident registration system.

Information collected for the purpose of the nationwide compulsory registration systems should be kept to the minimum level. However, in many cases, people do not know the specific purposes of such compulsory systems, which do not even have any legal rationales behind. Those systems allow the government to watch and control people regarding their activities using the information gathered on details of everyday life of people.

Compiling biometrics including fingerprints is a human rights violation. In South Korea, at the age of 17, each and every citizen should get their fingerprints registered and carry the information on the back of identification cards. However, biometrics should only be collected at limited situations because it could undermine the freedom of physical well-being. Law enforcement must obtain such information only when accompanied with warrants.

Furthermore, generating distinct identification numbers to each citizen should be carried out only when it is highly necessary. Identification numbers such as South Korea's and tax file number in many countries like Australia must be handled very carefully because those numbers might have lasting adverse effects on the subject once improperly revealed, given the nature of such numbers that is unique to a single individual and can easily be used to identify the individual. However, in many private and public sectors, identification numbers are collected occasionally and individuals are not able to use the Internet services without offering them. Also Identification numbers due to their unique nature are being used as a key field to combine each other database which is collected and established by the private and public sectors. Personal identification numbers should not be revealed or shared by the public for commercial reasons and purposes of collecting and using such information should be limited to cases such as offering the welfare services and statistics analysis.

¡á E-Government (electronic government) system

In recent years, many countries have introduced the electronic government system. Government officials claim that the electronic government should boost efficiency because it would minimize the need to use documents. In fact, they are building a massive database covering personal information of the general public. Unfortunately, proper legislative systems are not in place yet for governing such collection of personal information.

This has resulted in the situation where the subjects of e-government database system do not have any knowledge regarding who compiles their personal information and why they do so. Hence, they are rarely able to exercise their rights to give consents or refusal concerning the use of own personal information. Particularly, these various databases are combined and shared among government agencies through nationwide identification numbers.

This will allow the government to obtain all the information about each and every citizen. In some countries, the government even sells or reveals such information for commercial purposes, which is a violation of privacy rights.

¡á Smart Card  

Smart cards are regular sized plastic cards equipped with integrated circuits with a great memory capacity and high quality functionality, and they are highly secure. The reason smart cards have received a great interest from the public is because its such capacity which can even be upgraded.

Since the 1980s, Australia, the Philippines, South Korea, Japan and Venezuela have paid attention to the smart cards. The United States has also shown interests in smart cards since the September 11th terror attacks. Those countries are willing to adopt this system because of its great capacity; they can serve as identification cards, medical insurance cards, credit cards and so on. In other words, a single card can combine a massive amount of information about an individual in itself. Yet, these countries have faced an opposition from the public regarding the use of smart cards as a national identification card.

Critics argue that if single smart card could serve all information related services of single person, this would, at the same time, mean that single card can be served as a key to the whole personal information database of the individual. They admit the possible increase in efficiency but argue that this would pose threats to the right of self-decision, self-control on one's own personal information.

¡á Protection of private communications

Most countries have laws to protect the private communications between individuals and the right to communicate freely with others as basic rights. However, many changes have been introduced to the communication systems these days due to development of information communication technologies compared to the past when mails and telephone communication systems were the main tools for communication.

First of all, the quality and the range of services have changed dramatically; there are e-mails, online chat rooms, instant messaging services, online bulletin boards, websites, wireless Internet services, mobile communications and SMS(short message service) messages through mobile phones and so on. The communication traffic has increased enormously with an increasing number alternative ways of communication and there are different types of the communication medium such as text, sound and images are available. The world has blurred lines between private communications and public announcement.

Technologies have changed the characteristics of communications; communication devices used to focus on the speed of sending messages and were instant in nature. Now new communication devices focus more on the capacity of saving data. For example, SMS messages through mobile phone, messages as well as the identification of the receiver are saved. As for online communications, they include the information about the sender and the receiver, the log-on locations and contents of the communication. Particularly in cases of mobile SMS messages and online communications, even if the sender or receiver deletes messages or communication contents, they still remain at the server computers. Hence, such data for log-on information are saved automatically without users realizing such data storage.

The saved messages through these procedures are an easy target of monitoring. Furthermore, technologies now enable people to observe any online communication flows on the Internet in real time without getting the users to realize that their activities are being observed.

Given these potential adverse effects, new regulations for protecting the private communications are required. When law enforcement officials want to collect communication information of individuals from any communication companies, they should be required to obtain warrants to be eligible to demand such data. These wiretapping activities should only be taken into action when all other means are failed to assist investigation and should be limited to a relevant period and information content. Warrants should also clearly state the use and purpose of the information. All these efforts are necessary to minimize any possible violations of basic rights in the name of police activity.

3. Right to Privacy vs workplace surveillance  

Workers have the right to give consents or refusals regarding the collection, recording and storing of their own information. This is vital right for workers so that their dignity and right to privacy get respects and they can be treated fairly while they are working. Employee surveillance by companies can invade employees¡¯ private lives as well as labor control, given the fact that there are blurred lines between work and leisure in terms of time and place, due to new powerful communication and surveillance technologies.

While most constitutions around the world protect the dignity of workers and the right to privacy, few countries have any rules and regulations in place to control companies that monitor their workers through sophisticated technologies. Therefore, surveillances by the employer should be addressed with the international rules set by the International Labor Organization and labor unions should try to formulate any group contracts the way they reflect much of these international guidelines.
 

Companies can monitor their workers or collect their personal information with the consents of workers only when they attempt to reduce possible accidents. Monitoring without obtaining any consents from the subject is unacceptable any circumstances.

Workplace surveillance by employers without any consents of workers is unlawful laboring activity since it may undermine basic human rights such as privacy rights, right to work and right to unite. Companies must inform workers including leaders of labor unions about their monitoring policies and encourage union leaders and workers to participate in the decision making process regarding workplace monitoring.

Monitoring conducted secretly must be strictly prohibited. Any monitoring devices installed or operated without prior notice would be regarded as secret monitoring activities. Workers should not be unfairly treated based on the information secretly collected in evaluating their performance. Furthermore, monitoring any private conversation, social life and union activities should not be permitted.

Companies must fully explain the possible effects of monitoring and collection of information to workers before they ask for workers consents. Consents made under pressure should not be valid. Workers should have the right to change their mind even after the consent was given and right to demand the removal of devices used to collect unnecessary personal information. Companies must use the information only for the purposes that workers agreed to. Companies should not use the information as a basis for discrimination or unfair treatment of workers.

4. Right to privacy vs monitoring by markets

¡á Profiling

Personal information has been significant assets in many ways for quite a long time. Personal information of customers collected and organized into database has potential for value-added products. CRM (Customer Relationship Management) that has received attentions from companies recently allows companies to manage their customers according to customers¡¯ personal information, collected or purchased by the companies.

Customer information can be collected in various ways. Such information can be acquired by membership agreements or from other companies in the process of merger activities. Most firms use ¡®cookie¡¯ to collect customer information. Some firms install programs on customers¡¯ PCs to collect information or others intercept routers to obtain network information.

Information collected through these means gets analyzed and categorized to groups before being managed. For example, say a customer is found to put one item in the basket out of every twenty visits to a website and actually make a purchase for one among five items; Companies can utilize this specific information in their marketing plans. Credit card companies are even said to read their customers¡¯ mind through customers¡¯ credit card statements. For instance, if a customer buys decorating bulbs for Christmas trees, it could mean that he or she is interested in interior designs or cares about young children. As such information gets accumulated, companies can utilize these information to analyze the tastes of their customers better.

Since 1920s, General Motors, U.S. auto manufacturer began to analyze the connection between customers¡¯ demographic and socioeconomic background and their purchasing patterns. IBM started to offer such information to its corporate customers since 1930s. Companies have been able to affect demand patterns of a certain product by analyzing this information and offering a specific product line to specific customers in a specific area. The rationale behind this strategy is that people would get interested in a new product if they can easily get access to it. Similar logic applied to the restaurant industry where customers are willing to try new food or dishes.

It is true that sellers cannot force people to purchase their products or services. Most people are vaguely concerned about privacy invasive technologies, but they willingly provide their personal information when they believe that it is necessary to get better services. Apparently companies provide better services or more customized services without charging extra costs. In fact, the better services that look like to be provided for free of charge are actually not free.

The biggest problem comes from the procedures of processing such information. As information gets processed, customers are divided into groups solely based on their purchasing power and economic/income levels. Prism, a Virginia based research firm, once categorized African Americans, Latinos and other overseas-background people as ¡®dangerous minor groups¡¯. These dangerous groups are automatically isolated in the database. Privacy experts warn that these categorization and isolation could be expanded to the whole society and deepen the discriminatory behaviors in real life. This can be the start point of social surveillance.

¡á Spam mail

Spam mails cause problems; they waste people¡¯s resources in terms of time spent on deleting such mails from mailboxes and financial burdens on business people. But what is worse is that they may invade the recipients¡¯ privacy.

Spam mails overwhelm recipients¡¯ accounts by the volume of mails and means of sending out which cannot be controlled by the recipients without asking the recipients whether they are willing to receive such unsolicited mails. The truth is that a volume of tens of thousands trades email addresses, which fall into personal information category, are traded among companies, but the owner of such information, account holders, have no control over such activities. That is why users are interested in opt in system under which users are given a control over spam mails.
 

¡á Protection of medical records

Medical records should be strictly protected given the sensitive nature of the information. However, related legislations do not provide specific and practical rules in protecting such information, but mainly state a vague and general principle, ¡®protection of confidentiality¡¯. Therefore, many private firms including insurance companies often make use of such personal information commercially.

Recently genetic information is at stakes. Government agencies and various companies are eager to collect such information. Prosecutors' office in South Korea had hoped to establish a controversial genetic data bank in cooperation with private companies. Under the scheme, they argued that law enforcement authorities must collect genetic data of convicted criminals to address the possible second offense. Critics argue that the plan is focused on collecting genetic data starting from the less privileged people to the rest of the society.

Against this backdrop, an increasing number of citizens are supporting that strict measures should be taken to regulate companies, which try to collect medical records, and control any transactions between government agencies and those companies.

¡á Information regarding credibility

As credit rating companies start to rate credibility of individuals, virtually all types of information regarding one¡¯s history of financial transactions are become available to public including loans records, any overdue payments history as well as online transaction history. This may cause situations where Individuals get disadvantaged or treated unfairly due to minor mistakes concerning financial transactions they made in the past. Particularly, problems regarding credibility information have become serious issues throughout the society since 2000, as broader range of information has become available to public such as tax payments history, litigations record, and even information regarding transactions between suppliers and customers.

Now, it is highly likely that people may get disadvantaged due to being captured in credibility information net, as personal information including banking records, litigation records, payments of utilities are made available to public. Usually, the business of credit rating of individuals gets originated as a format of banks-dominated consortium, and once retailers and communications firms join the business, individuals would end up in revealing every single detail of personal records even against their will. Accordingly, as the personal credibility rating go up with its full potential, harmful effects would be caused by revealing personal records; it could also undermine privacy rights, and minor financial mistakes could devastate any individual.