(THE PARADOX AND THE BALANCE)
A Presentation By: Amr Zaki Abdel Motaal
Attorney At Law - Egypt
The Public Voice In Emerging Market Economies Conference, in conjunction with
Emerging Market Economy Forum OECD - DUBAI -2001
Burj Al Arab, January 15th, 2001
1- The evolution of informatics and telematics in the last decades, had among others "an impact on three types of relationships:
2- Stored personal data gives governments and private business entities (enterprises either national or trans-national) huge De Facto powers that may threaten the freedom of the individual in case of misuse or abuse.
3- Two schools of legal thought have evolved, preaching two
different concepts pertaining to the dangers of information systems
relating to the right of privacy.
"The first school claims that the evolution of data and information systems does not require specific legislative texts to protect Privacy and that the available legal arsenal is more than enough, new legislations are not required, the courts and the judiciary can adapt the available legislations to the facts arising from digital technologies.
The second school claims that the new information concepts are putting the right of privacy in jeopardy due to the voluminous capabilities of said systems in storing and processing personal data specially in case of error or manipulation while feeding the systems with data or during the reorganization of the systems or due to mechanical or electronic defects or malfunction.
The power of the new information systems in mixing, blending, classifying and analyzing personal data could make available different profiles for the same individual, the speed of data transmission is also a new hazard to privacy, the publication and publicization of personal data is not the only threat. The extraction and diffusion of value judgments without the real personal study of the individual facts based only on the stored and processed data, is in itself a tremendous threat, new legislative texts organizing the acquisition, the storage and processing of data are a must".3
4- Individual freedoms and the right of privacy are threatened either by undemocratic systems in national states or by some other national or transnational entities. The authority controlling data banks (either sovereign states or private enterprises) could use, misuse or abuse the data whenever the decision maker requires it. The advent of what is sometimes called the national number given to each citizen may facilitate the surveillance, the control and the manipulation in the absence of democratic checks and balances and the supremacy of the law.
5- The right of privacy is safeguarded by international conventions, covenants, supra-national laws and national laws, the rift between theory and practice, the De Jure and the De Facto is tremendous.
6- The power of the new clergy (the technocrats in the fields of information and telecommunications technologies) is gaining momentum due to the acceleration effect on the volume, speed and power of said systems, the ignorance or the limited knowledge of said systems by the decision maker in the political, economic and social fields is widening the gap each and every second, endangering the social, economic and political systems. How can we control the power of the new clergy? Bearing in mind that they are the innovators, the controllers and the manipulators of the new information systems. In the beginning of the nineties, the question " who rules the world?" was asked again, are people in democracies ruling the world? Are the dictators ruling the world? Or is the media ruling the world? Political scientists stated that "in the post industrial society the free independent individual does not exist and that the post modern machine has crushed, absorbed and reproduced the human raw material in the form of identical, unconscious units, social scientists claimed we don't have psychology anymore but we do have neurology, we do not have political science, we do have administrative science". The dehumanization of the human being is on its way especially by the advent of new genetic and bio-medical technologies with drastic effects unknown to us, putting homo sapien in a real dilemma or is it a new evolutionary phase of the human kind?
7- If you can view the website entitled: "http://www.top500.org. You shall discover that 90% of the super computers are made in the United States of America and 10% in Japan and that the computational powers in the world and by order of magnitude are:
The rest of the world is of minimal weight, by reading said facts you will realize where the real digital power in the world is located. But who are the possessors of said power?
8- National sovereign states versus globalization, national
entities versus multi-national entities, said conflicting situations
could terminate the existence of the world as we know it. privacy may
be threatened by thought intoxication, black operations, terrorism,
cyber crimes, emergency laws not to mention hackers, crackers,
Is privacy dead? Some say it is dead and some say that it is dying. To protect what remains of privacy, new legal systems, tools and concepts should be invented and engineered to smoothen the transformation from the verbal civilization to the digital civilization, the engineering of said tools and systems shall be made by the persons in power.
9- Should we strive for privacy? It is said in Islam "a believer should work in this material world as if he was going to live forever and work for his after life as if he was going to die tomorrow" and it is also said "if dooms-day starts while you are planting a tree plant it". So as life goes on we should strive for the protection of the right of privacy by using technical means, legal tools (legislative, contractual) and ethical ways, always bearing in mind that in this world "might is right" and that the "relative prevails".
10- In the realm of data protection the french experiment and
experience in this context is important. "The law entitled
(Informatics and Freedom) is in the opinion of the majority of modern
jurists a balanced law (after its consecutive modifications to cope
with the different international conventions) together with the
several recommendations made by CNIL.
CNIL (Commission National Informatic et Liberte) created by said law to organize informatics and freedom issues of tremendous interest. Due to the activity of CNIL, several legal texts have been amended to protect the right of privacy in the fields of informatics and telematics specially in the penal code and the code of criminal procedures, also the impact of the CNIL is well known in the fields of information collection, data banks, health, finance and personal data collection, storage and processing.
The European directive of the 24th of October 1995 had a positive impact and CNIL announced five orientations: -
On the international scene and since 1980 the OECD formulated recommendations pertaining to the protection of data which had an impact on the French legislation.The principle of auto-regulation can be seen in what is known as "OPA" (Online Privacy Alliance) and what is known as the Web Trader Code of the year 2000 to support this trend".5
11- The member states of the Council of Europe in their endeavor to fight Cyber-Crimes have stated in the preamble of the draft "Convention on Crimes in Cyber-Space "(draft 22) The following reasons for drafting said convention:-
"Convinced of the need to pursue, as a matter of priority, a common criminal policy aimed at the protection of society against Cyber-crime, inter alia by adopting appropriate legislation and fostering international co-operation;
Conscious of the profound changes brought about by the digitalization, convergence and continuing globalization of computer networks;
Concerned at the risk that computer networks and electronic information may also be used for committing criminal offences and that evidence relating to such offences may be stored and transferred by these networks;
Believing that an effective fight against cyber-crime requires increased, rapid and well-functioning international co-operation in criminal matters
Convinced that the present Convention is necessary to deter actions directed against the confidentiality, integrity and availability of computer systems, networks and data, by providing for the criminalisation of such conduct, as described in this Convention, and the adoption of powers sufficient for effectively combating such criminal offences at both the domestic and international level, and by providing arrangements for fast and reliable international co-operation, while ensuring a proper balance between the interests of law enforcement and respect for fundamental human rights;"6
12- The draft convention (which is by the way an open convention for member and nonmember states of the Council of Europe) rose several protests culminating namely in two important documents:
The first while praising the convention as an important initiative (recognizing that the U.S Dept of Justice assisted in developing its language) stated that industry had several concerns political, technical, and legal. The second raised several issues pertaining to human rights and legal technicalities.
13- In the opinion of neutral jurists the solution would emerge by:
14- The confrontation between globalization and nationalism on one hand, sovereign states and transnational entities on the other is having toll on the right of privacy among other human rights. The synthesis of a new reality emerging from the clash of the two trends could be the answer. Will it be globalization with a humanitarian face? If a consensus does not emerge, destabilization of societies, terrorism, abuse of human rights and even wars shall be the order of the day. A spirit of global partnership - a win win situation - and not a unipolar domination should prevail, in a mosaic of cultural diversity. If not, chaos is the unfortunate alternative or even worse the advent of "big brother" on a planet colonized by automats and cyborgs, this shall be the true "End of History" for human kind.
List of References:
1 - For a more detailed discussion of the subject of "THE LEGAL PROTECTION OF THE RIGHT OF PRIVACY ON THE NETWORKS", consult our paper published on the web site: http://webworld.unesco.org/infoethics2000
2- See in Arabic:
See in English:
3 - Hassabo. A.A-Prof. Dr. "The Protection Of Freedoms Versus Information Systems" in Arabic-Dar Al Nahda Al Arabia 32 Abdel Khalek Sarwat at Street, Cairo, Egypt.
4 - "Science et vie" N999, Dec 2000 P64-65 article par "Herve Poirier" - France.
5 - Schuhl -C.F. "Cyber Droit" Dalloz-Dunod, Paris, France 2000.
6 Draft Convention on Cyber Crimes, draft 22. Rev.2 , Strassbourg via the Internet.
7 USCIB firstname.lastname@example.org
8 Global Internet Liberty Campaign Member Letter , Oct 18, 2000 via the Internet.