L A W  &  J U S T I C E

US Patriot Act: Civil Liberties under Threat
Joginder Singh Toor

THE origin of right to privacy is traced in America from an article jointly written by D. Warren and Louis D. Brandeis in 1890, which paved a way for statutory recognition of this right. In 1928, Brandeis, then a US supreme court justice, described this right of “to be let alone” as the most comprehensive and valued right of the civilized people.

The right has been protected in three ways:

i) Constitutionally; to grant to the people the right to make personal decisions regarding intimate matters, without government interference or coercion relating to their religious faith, moral values, political affiliations, marriages, procreation etc. The citizens are entitled to take such decisions according to their own conscience and belief.

ii) In common law, a citizen, whose privacy has been infringed is provided, with       remedies of suing for torts if his solitude or seclusion has been intruded upon in an unreasonable and highly offensive manner, or if information concerning his private life not based on public records, is disclosed to the public in highly objectionable fashion, or if his personality has been affected in false light (such as, publishing a photograph of a not-concerned man in closed proximity of a criminal story), or impersonating someone’s name or likeness without his or her consent, including his business or trade secrets.

iii) Legislation defining privacy in variety of contexts, limiting its extents, providing access to personal information to government and intelligence agencies, trans-border access to personal information of citizens of other countries, mandated disclosure of credit records, submission to drug tests by employers or      other agencies, access to electronic information and commercial records within the limits provided under the legislation.

In Canada, federal law and provincial laws regulate the collective use and storage of personal information by both levels of governments. Canada has two privacy laws. The Privacy Act, 1983, and the Personal Information Protection and Electronic Documents Act, which partly came into force in 2001, and completely in 2004.

The federal privacy act protects the personal information collected by the government, for operating programs and activities. The second legislation PIPEDA addresses the collection storage and use of personal information by organizations in the private sector. The information collected is to be used only for the purpose it was collected, was gathered by the knowledge and consent of the person, for a reasonable purpose, should be accurate and up-to-date, and open for inspection and correction by the individual. Above all, it should be stored securely.

The office of the Privacy Commissioner of Canada has been created by the Parliament of Canada, to act as an ombudsman, advocate and guardian of privacy rights in Canada. It is an effective independent office that makes annual reports and suggests remedial measures even amendment to related laws. It has in its June 20, 2006 annual report, pointed out, improper use of personal information which has evoked grave concern in many a quarter leading to recommendation for immediate review and amendment of the laws relating to privacy.

The Unite States of America has passed the US Patriot Act, which gives the United States government sweeping powers to “seize” information from American or Canadian companies operating in the USA and elsewhere. The avowed purpose is gather information that may be used by terrorists. Intercept and obstruct any information in that regard and keep watch over all sources of information, private or public.

Studies by office of Privacy Commissioner reveal that 94% Canadians express some concern about Canadian companies transferring personal information to other countries, and 85% of those Canadians, with awareness of the privacy implications of the US Patriot Act. It is being considered a major threat to the privacy.

This trans-border data flow is now the concern not only of Canadians but in other countries also. A human rights group in London, England, has filed formal complaints in 32 countries including Canada against Brussels based consortium known as SWIFT (The Society for Worldwide Interbank Financial Telecommunication), for violating jurisdiction and rules by providing confidential information about international money transactions to the USA. SWIFT is hub of global banking industry, running electronic messages service, covering about 7800 financial institutions in the world? The intrusion to private information by the USA has been mentioned in the media as “CIA monitoring personal bank data”.

Taking stock, the privacy commissioner of Canada feels that the Privacy Act has not been substantially amended since it came into affect in 1983. The scheduled 2006 review of PIPEDA is already due. The government has made all of its 160 institutions subject to Federal Privacy Act, aware of the privacy issues raised by the USA Patriot Act. The institutions are to review their contracting and outsourcing arrangements to identify any risks under the Patriot Act, including privacy checklist, upfront advice considering privacy before initiating contracts, development of a privacy management framework, to establish high standards of privacy, technology and data architecture solutions, additional guidelines for government to government data sharing arrangements, increased training relating to cross border data flow.

In America where civil liberties long cherished by the citizens and hawked world wide as American brand are under grave threat. This has meant sniffing at millions of e-mails, telephone conversations, mails and other means of communication by federal agencies. Even bank accounts and bank transactions all over America are under watch. Newspapers like New York Times, Los Angles Times and even Wall Street  Journal who had been digging reports to highlight the misuse of these  vast and alarming powers the US government has assumed with dire action under secrecy a laws. This has lead to loud protests all over America.

It is indeed disturbing to note as reports in American Progress suggest that  New York Times, Los Angeles Times, and Wall Street Journal  have  published stories about the Bush administration's secret program to track terrorist financing. Without the knowledge of many banks and their customers, the Treasury Department has been "accessing a vast database [SWIFT] of confidential information on transfers of money between banks worldwide." Since the stories ran, the New York Times -- which earlier broke the story on President Bush's warrantless domestic eavesdropping program -- has been the main target of attacks by the right wing and the administration. Rep. Peter King (R-NY) argued that the paper's reporters, editors, and publishers responsible for the story should be charged under the Espionage Act, punishable by up to 20 years in prison. White House Press Secretary Tony Snow argued that the New York Times "was way ahead of the other two" papers and therefore needed to be held primarily responsible. While journalists do need to weigh whether reporting classified information will jeopardize national security, the administration's argument jeopardises the "aggressive, independent press" that is an "essential ingredient for self-government."

There is, in fact, an urgent need for every citizen in ever country to prevent the invasion on privacy and personal information as these are two pillars of civil liberty.

[Email: jogindersingh_toor@yahoo.com]

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