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TBB Dergisi 2013 (109)
Ayhan BOZLAK
57
Abstract:
Today privacy is seriously under attack and/or risk in many
ways especially in the public context. For instance, as it is known nowadays
not only government agencies but also some commercial companies -like
ChoicePoint and LexisNexis- collect personal information in different forms
as well. As an example of the matter at the present time it is estimated
that there are as many surveillance cameras as 30 million in the US that
both goverment and private companies have. It is also known that those
cameras are not only used for only security reasons, but for other resaons,
for instance to control employees, too. The proliferation of surveillance
tools and methods make public anonymity much more difficult to sustain
than it used to be. So, in here the most important issue is that at least
there must be perfect regulations and judicial oversight or watching for
the watchers.
The right to privacy that the Supreme Court of the United States
(SCotUS) has inferred from the First, Second, Third, -especially- Fourth
(search and seizure), Fifth, Eight, Ninth and Fourteenth Amendments to
the United States Constitution. It means there is no explicit provision over
privacy in the Constitution. Whereas the European Convention on Human
Rights (ECHR) includes a clear regulation related to the issue, which is
Article 8 titled “Right to respect for private and family life.” Therefore, by
contrast to the US Constitution and SCotUS’ precedents, the ECHR and the
European Court of Human Rights (ECtHR)’s precedents provide an explicit
right to privacy and they confer that is not merely a negative right against
state interference but also a positive right to the enjoyment of privacy.
Also, ECHR conceptions of privacy view it as an aspect of dignity, whereas
the US conception of privacy tends to see it as an aspect of liberty.
At this point it is easily seen that both the courts’ approach is very
important and dominant over the issue. Because, privacy may compete
or come into conflict with other values and it is not incapable of being
legitimately constrained or overridden. Security and public safety are major
issues which privacy competes with, but they are not the only ones. Privacy
may conflict with freedom of expression, of speech and of the press, with
ideas of governmental transparency, with economic efficiency and others.
So, the issue is one of achieving a balance and the important question
concerns the conditions under which it may be contracted or overridden.
This task is mainly done by the highest courts which are mentioned above.
Both courts have used some criterias to clarify whether interferences
in privacy are justified or not. Among these some of them outstanding
which reflect different perspectives of the SCotUS and ECtHR for privacy in
the public context. The significant one of them is the resonable/legimate
expectation of privacy test. This test was created and used by the SCotUS
to protect privacy particularly in the public contex and to broad it, but it
has been used to narrow privacy lately by the same court. Additionally,
the SCotUS explicitly declined to decide whether reasonable expectations
of privacy and hence Fourth Amendment rights extend to other areas of
privacy in particular in public context such as electronic communications.
Furthermore the SCotUS has applied many exceptions about privacy in
the public context and some other areas related to it such as collection of
personal data and their access, privacy in the workplaces and electronic
communications etc. Otherwise, ECtHR has said that reasonable
expectation as to privacy may be a significant, though not necessarily,