Privacy Rights/Culture and Politics/Country intepretation
Is this right interpreted and exercised in different ways in different countries? Focus on particular countries in which the right is interpreted distinctively
The right to privacy has been interpreted in various ways. The EU has strict legislation regarding data privacy and the Council of Europe has outlined in Article 8(1) of the ECHR (1950) the right to privacy in the four spheres of family life, private life, communication, and the home (Wolford, n.d.). On the other hand, the United States has outlined protections from government interference in the private sphere in the Bill of Rights, has comparatively less (& less encompassing) legislation on the issue, and has relied on the courts to protect people from private entities and in the home (U.S. Constitution; 1787, Amendment 4; Privacy, n.d.). These differences result in a more consistent application of privacy rights in Europe compared to the United States.
In the home, Europeans have had a safe, private space since 1950 (ECHR, 1950, Art. 8(1)). In the United States, this right wasn’t concrete until long after the Supreme Court began ruling on the privacy cases in the mid-1960s (Privacy, n.d.). However, it remains that Americans have a higher expectation of privacy in the home than in a public area (Electronic Surveillance, n.d.). In an extreme example of lack of privacy in the home, Albanians working for the Soviet government did not own anything in their homes – the state owned it all (Lubonja, 2001, 239).
Exceptions to privacy at home include police entering with and, in some cases, without a warrant. New Zealand also utilizes court-issued warrants to prevent officials from entering the home, but if officials are actively preventing a crime, enforcing a law, making an arrest, or aiding in an emergency, they do not need a warrant (Community Law, n.d.). Within the European Union, this warrant can come from a court within any part of the EU’s jurisdiction. The European Evidence Warrant (EEW) allows a warrant issued to gather evidence to be valid across the EU and the European Arrest Warrant (EAW) applies this principle to the arrest of criminals taking exploiting the open borders within the EU (European evidence warrant, 2006; European arrest warrant, n.d.). EEWs can also be used to get cell phone records (The European evidence warrant, 2006) . In the United States, a customer can ask for those records to be turned over to authorities or authorities can use a subpoena (FCC 2019) .
The Prüm Convention demonstrates another aspect of inter-European collaboration in crime-solving efforts, leading to interesting implications for data privacy. Belgium, Austria, the Netherlands, Germany, France, Luxembourg, and Spain all signed this treaty, to which other nations can opt-in, in an effort to increase cross-border security (Prüm Convetion, 2005) . At the roots, it allows the parties to ask each other for help solving crimes by sharing data from each nation’s crime database (Walsch, 2008, 86). By not creating an international crime database, each nation is required to ask other nations for the needed data (Walsch, 2008, 86). This method allows the shared data to be governed by each nation’s specific data privacy laws, but it lands in an unregulated grey area after the data transfer (Walsch, 2008, 85). Differences in privacy law become clear when looking at what personal data is collected from people. Some states collect DNA in all criminal cases, others only when the person has been in prison for over two years, and others do not collect DNA at all (Walsch, 2008, 86). In the context of solving international crime, these differences mean some states tend to be more helpful than others.
References:
Community Law. (n.d.). Entry powers: When the police can come into your home. Retrieved Sept. 21, 2021, from https://communitylaw.org.nz/community-law-manual/chapter-31-police-powers/entry-powers-when-the-police-can-come-into-your-home/entry-without-a-warrant-to-prevent-or-investigate-crimes/
Electronic Surveillance. (n.d.). Cornell Law School Legal Information Institute. Retrieved Sept. 20, 2021, from https://www.law.cornell.edu/wex/electronic_surveillance
European arrest warrant. (n.d.). European Commission. Retrieved Sept. 21, 2021, from https://ec.europa.eu/info/law/cross-border-cases/judicial-cooperation/types-judicial-cooperation/european-arrest-warrant_en
European Convention on Human Rights. Council of Europe. Nov. 4, 1950. https://www.echr.coe.int/documents/convention_eng.pdf European evidence warrant. (2006, June 1).
European Commission. Retrieved Sept. 21, 2021, from https://ec.europa.eu/commission/presscorner/detail/en/PRES_06_168
European evidence warrant, The: The acquisition and admissibility of foreign evidence. (n.d.). Academy of European Law. Retrieved Sept. 20, 2021, from https://www.era.int/cgi-bin/cms?_SID=d241949ae554074b1e14fd12b7f05d3f5d1e38df00162723613600&_sprache=en&_bereich=artikel&_aktion=detail&idartikel=121538
Federal Communications Commission (FCC). (2019, Dec. 30). Protecting your privacy: Phone and cable records. https://www.fcc.gov/consumers/guides/protecting-your-privacy
Lubonja, F. (2001). Privacy in a totalitarian regime. Social Research 68(1), 237-254. https://www.jstor.org/stable/40971449
Privacy. (n.d.). Cornell Law School Legal Information Institute. Retrieved Sept. 8, 2021, from https://www.law.cornell.edu/wex/privacy
Prüm Convention. AT-BE-DE-ES-FR-LU-NL. May 27, 2005. 10900/05. https://ec.europa.eu/anti-fraud/sites/default/files/docs/body/prumtr.pdf
U.S. Constitution. Amendment IV. https://www.archives.gov/founding-docs/constitution-transcript
Walsch, C. (2008, Nov. 9). Europeanization and democracy: Negotiating the Prum Treaty and the Schengen III Agreement. Politicka Misao, XVL(5), 81-90.
Wolford, B. (n.d.). What is GDPR, the EU’s new data protection law? GDPR EU. Retrieved Sept. 9, 2021, from https://gdpr.eu/what-is-gdpr/