The right to privacy, or the right to respect for private life, as the European Convention on Human Rights guarantees it, has been affected by the IT growth era. Privacy has long been protected, but will face a new dimension of protection for the generations to come. The right to respect for private life is not an absolute one, and may have a different feature in different context.
By Niemitz v. Germany judgment (1992) the European Court on Human Rights (‘the ECtHR’) included the right to connect with other individuals into the notion of private life, saying that it would be too restrictive to limit the notion of an ‘inner circle’ to personal life and exclude there from entirely the outside world not encompassed within that circle. The right to communicate was thus inserted into the privacy context.
But the extent of communication and technologies which enable it significantly changed since.
Few decades ago, it mainly consisted of personal communication, communication by conventional letters and phone communication. At the time the Convention was adopted in the mid last century, there was no internet, not even mobile/cell phones, nor personal computers. The feature of privacy protection was much more simple then today.
Now, when we approach the rule of IoT (internet of things) communication, not only do people communicate, but ‘things’ as well. The subject of that ‘non-human’ communication may also be private data of individuals. At the same time, the individual, human communication became more simple, available at any time, and versatile by its means.
New society digital evolution becomes a special challenge when speaking of the protection of privacy. Availability of every person not only in physical life but in cyber life as well, upgrades the privacy to a new sphere. If we do ourselves chose to use social networking, Skype, Instagram, Twitter, Yahoo Messenger, Linkedin, Facebook, the later being ‘the most powerful database of persons ever on internet’ as rightfully noted by prof. Bajrektarević, in his book ‘Is there life after Facebook?’ as well as other internet features, we must be aware that our privacy may come into the open. If we add to that e-context a physical surrounding of a working place, under certain conditions, the feature of privacy changes, i.e. it becomes less protected then in the context of an earthbound private circle, the surrounding which was in mind of lawmakers when adopting for instance the European Convention on Human Rights in 1950.
Recently, at the table of the ECtHR was the case of Barbulescu v. Romania (judgment enacted in January 2016), where the question arose of whether an employer is entitled to look into his employer’s private messages at Yahoo Messenger. The messages were written by the employee during the working time, at the computer owned by the employer. The employer monitored and made transcript of messages made at the Yahoo Messenger account that was created at the employer’s request for the purposes of contacts with clients, but the transcript also contained five short messages that Mr. Barbulescu exchanged with his fiancee using a personal Yahoo Messenger account.
The ECtHR found no violation of the right to respect the private life by such actions of the employer.
The ECtHR noted that the employer did not warn the employee of the possibility of checks of the Yahoo Messenger. However, the company where Mr. Barbulescu worked did adopt internal rules according to which it was strictly forbidden to use computers, photocopiers, telephones, telex and fax machines for personal purposes. Can that be seen as a warning? Does it give an employer a right to monitor personal messages of an employee?
We may wonder if the ECtHR gave the advantage to a market economy and profit growth, versus privacy? Did it give to employer the right to control the employee even if that would mean invading his privacy? This, under certain conditions, like internal policy rules or warning, gives the employers the right to rule the employees space, of course, during work hours, and their right to monitor the job done by his employees may be stronger then their right to privacy.
However one should be careful in concluding that all employers may now freely snoop into their employees’ e-mails, tweets, messages etc.
The ECtHR took into consideration the ‘expectation of privacy’, which Mr. Barbulescu, the employee, had regarding his communications. The internal rules of the employer which strictly prohibited the use of computers for private purposes, made the decisive shift towards ruling in favor of non violation. He probably should not have expected to have his privacy respected in such circumstances. But in the absence of such rules and in the absence of warning, any such intruding into employees’ private communication would rise an issue of privacy protection.
With the fast development of society and technology, the privacy is much more vulnerable, and it apparently affects its legal protection.
Almost two decades ago in the case of Halford v. UK the same ECtHR decided that tapping of Ms. Halford’s phone at the office did constitute a violation of her right to respect of her private life. Without being warned that one’s calls would be liable to monitoring the person would have reasonable expectation that his privacy is protected (Halford v. UK 1997). In Amann v. Switzerland ECtHR judgment (2000) telephone calls from business premises pursue to be clearly covered by ‘private life’ notion.
The ECtHR further spread the privacy protection to e-mails sent from work in the Copland v. United Kingdom judgment (2007). In this case it also decided that monitoring of telephone usage in the way of analysis of business telephone bills, telephone numbers called, the dates and times of the calls, duration and cost, constituted “integral element of the communications made by telephone”, and made an interference into the privacy. Moreover, the ECtHR was of the view that the storing of personal data relating to the private life of an individual also fell under the protection of the Article 8, being irrelevant whether it was or was not disclosed or used against the person. It further held that that ‘e-mails sent from work should be similarly protected under Article 8, as should information derived from the monitoring of personal Internet usage’ like analysing the websites visited.
In Halford and Copland case the personal use of an office telephone or e-mail or was either expressly or tacitly allowed by the employer. Accordingly the ECtHR found a violation of privacy when the employer intruded therein. In Barbulescu, on the other hand, due to the internal regulations that forbid the private use of computers, the ECtHR did not consider a monitoring by employer to be a violation of his privacy, although the intrudment happened in the form of making the transcript of employee’s messages and keeping that transcript. The ECtHR considered that ‘broad reading of Article 8 does not mean, however, that it protects every activity a person might seek to engage in with other human beings in order to establish and develop such relationships’ (Barbulescu para 35)
We can see that the position of employer towards allowing or non allowing phone, e-mail, or internet usage, made a diference as to the employee’s expectation of privacy. But can we add to that the more open communication, as a reason of lowering the level of the ‘expectation of privacy’?
It still remains up to the individual how he/she shall expose his/her privacy. The means of multiple communication, are now in everyone’s pocket, and a person does not have to use a land phone line, in order to call home. By simple touching the screen he/she may communicate, share, like, tweet, comment. If it is done during working hours, it gives, under certain conditions, a possibility to employers to look into that ‘share’, ‘like’, ‘tweet’, ‘comment’ and still not to invade anyone’s privacy.
The more open the conversation is, its protection gets more demanding and complicated. So the protection of privacy remains a big test for the future.
The European Commission has launched an EU Data Protection Reform in 2012, in order to ‘make the Europe fit for the digital age.’ Strengthening citizens’ fundamental rights, Digital Single Market, are the areas that need special attention. Currently in force Directive 95/46/EC of the European Parliament and of the Council of the EU of 1995, provides that personal data is ‘any information relating to an identified or identifiable natural person’.
Article 29 Data Protection Working Party (‘DPWP’), in 2002 adopted a Working Document on the Surveillance and the Monitoring of Electronic Communications in the workplace. According to that Document the mere fact that monitoring serves an employer’s interest could not justify an intrusion into workers’ privacy. Monitoring, according to the DPWP, must pass four tests: transparency, necessity, fairness and proportionality.
‘Workers do not abandon their right to privacy and data protection every morning at the doors of the workplace’ provides the Document, however, ‘this right must be balanced with other legitimate rights and interests of the employer, in particular the employer’s right to run his business efficiently to a certain extent’.
Under Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on Privacy and Electronic Communications) of 2002 ‘Member States shall ensure the confidentiality of communications and the related traffic data by means of a public communications network and publicly available electronic communications services, through national legislation.’ It provides for the prohibition of ‘listening, tapping, storage or other kinds of interception or surveillance of communications and the related traffic data by persons other then users without the consent of the users concerned’. Exceptions may be made, inter alia, for the interests of national security, prevention of criminal offences or of unauthorised use of the electronic communication system etc.
Data protection of citizens will be a big challenge in future. The judge Pinto de Albuquerque in his partly dissenting opinion in Barbulescu case has criticized the ECtHR’s majority in missing the chance to develop its case-law in the field of protection of privacy with regard to Internet communications and for overlooking, inter alia, some important features like sensitivity of the employee’s communication and non-existence of Internet surveillance policy duly followed by the employer (apart from the above mentioned internal regulations forbidding the use of computers).
On one hand there is a request for privacy protection, while on the other hand, there is a request from the market economy/employers that the job be done. The interests of the two must always be fairly balanced, but with the speedy development of technology and the internet interaction, the danger of exposing private data rises. That is why the legal creators have a big responsibility to act ahead of time, which, in the IT context, is running at the light speed.
Carl Schmitt for the XXI Century
For decades, the scholars of international relations have confused the term “New World order” in the social, political, or economic spheres. Even today, few scholars confuse the term with the information age, internet, universalism, globalization, and American imperialism. Unlike the complex categorization of the New World Order, the concept of the Old World Order was purely a juridical phenomenon. However, from standpoint of modernity, the term New World order is a purely ideological and political phenomenon, which embodies various displays such as liberal democracy, financial capitalism, and technological imperialism.
In his Magnus Opus “The concept of the Political”, Carl Schmitt lauded a harsh criticism on liberal ideology and favored competitive decisionism over it. This is why according to Schmitt’s critics; the whole text in “The concept of the political” is filled with authoritarian overtones. Nonetheless, the fact cannot be denied that it was the radical political philosophy of Carl Schmitt that paved the way for the conservative revolution in Europe. Even today, his writings are being regarded as one of the major contributions to the field of political philosophy from the 20th century.
Throughout his major works such as “Nomos of the earth”, “the Crisis of Parliamentary democracy”, “The concept of the Political” and “Dictatorship”, Carl Schmitt frequently employs unadorned terms such as ‘actual’, ‘concrete’, ‘real’, and ‘specific’ to apprize his political ideas. However, he advances most of the core political ideas by using the metaphysical framework. For instance, in the broader political domain, Carl Schmitt anticipated the existential dimension of the ‘actual politics’ in the world today.
On the contrary, in his famous work “The Concept of the Political” readers most encounter the interplay between the abstract and ideal and, the concrete and real aspects of politics. Perhaps, understanding of Schmitt’s discursive distinctions is necessary when it comes to the deconstruction of the liberal promoted intellectual discourse. However, the point should be kept in mind that for Schmitt the concept of the political does not necessarily refer to any concrete subject matter such as “state” or “sovereignty”. In this respect, his concept of the political simply refers to the friend-enemy dialectics or distinction. To be more precise, the categorization of the term “Political” defines the degree of intensity of an association and dissociation.
In addition, the famous friend-enemy dialectics is also the central theme of his famous book “The Concept of the Political”. Likewise, the famous friend-enemy distinction in Schmitt’s famous work has both concrete and existential meaning. Here, the word “enemy” refers to the fight against ‘human totality”, which depends upon the circumstances. In this respect, throughout his work, one of the major focuses of Carl Schmitt was on the subject of “real Politics”. According to Schmitt, friend, enemy, and battle have real meaning. This is why, throughout his several works; Carl Schmitt remained much concerned with the theory of state and sovereignty. As Schmitt writes;
“I do not say the general theory of the state; for the category, the general theory of the state…is a typical concern of the liberal nineteenth century. This category arises from the normative effort to dissolve the concrete state and the concrete Volk in generalities (general education, general theory of the law, and finally general theory of the knowledge; and in this way to destroy their political order”.
As a matter of the fact, for Schmitt, the real politics ends up in battle, as he says, “The normal proves nothing, but the exception proves everything”. Here, Schmitt uses the concept of “exceptionality” to overcome the pragmatism of Liberalism. Although, in his later writings, Carl Schmitt attempted to dissociate the concept of “Political” from the controlling and the limiting spheres but he deliberately failed. One of the major reasons behind Schmitt’s isolation of the concept of the political is that he wanted to limit the categorization of friend-enemy distinction. Another major purpose of Schmitt was to purify the concept of the “Political” was by dissociating it from the subject-object duality. According to Schmitt, the concept of the political was not a subject matter and has no limit at all. Perhaps, this is why Schmitt advocated looking beyond the ordinary conception and definition of politics in textbooks.
For Schmitt, it was Liberalism, which introduced the absolutist conception of politics by destroying its actual meaning. In this respect, he developed his very idea of the “Political” against the backdrop of the “human totality” (Gesamtheit Von Menschen). Today’s Europe should remember the bloody revolutionary year of 1848 because the so-called economic prosperity, technological progress, and the self-assured positivism of the last century have come together to produce long and deep amnesia. Nonetheless, the fact cannot be denied that the revolutionary events of1848 had brought deep anxiety and fear for the ordinary Europeans. For instance, the famous sentence from the year 1848 reads;
“For this reason, fear grabs hold of the genius at a different time than it does normal people. the latter recognizes the danger at the time of danger; up to that, they are not secure, and if the danger has passed, then they are secure. The genius is the strongest precisely at the time of danger”.
Unfortunately, it was the intellectual predicament at the European stage in the year 1848 that caused revolutionary anxiety and distress among ordinary Europeans. Today, ordinary Europeans face similar situations in the social, political, and ideological spheres. The growing anxieties of the European public consciousness cannot be grasped without taking into account Carl Schmitt’s critique of liberal democracy. A century and a half ago, by embracing liberal democracy under the auspices of free-market capitalism, the Europeans played a pivotal role in the self-destruction of the European spirit.
The vicious technological drive under liberal capitalism led the European civilization towards crony centralism, industrialism, mechanization, and above all singularity. Today, neoliberal capitalism has transformed the world into a consumer-hyped mechanized factory in which humanity appears as the by-product of its own artificial creation. The unstructured mechanization of humanity in the last century has brought human civilization to technological crossroads. Hence, the technological drive under liberal democratic capitalism is presenting a huge threat to human civilizational identity.
 Wolin, Richard, Carl Schmitt, Political Existentialism, and the Total State, Theory and Society, volume no. 19, no. 4, 1990 (pp. 389-416). Schmitt deemed the friend-enemy dialectics as the cornerstone of his critique on liberalism and universalism.
Democratic Backsliding: A Framework for Understanding and Combatting it
Democracy is suffering setbacks around the world. Over the past decade, the number of liberal democracies has shrunk from 41 to 32. Today, 34 percent of the global population lives in 25 countries moving in the direction of autocracy. By contrast, only 16 countries are undergoing a process of democratization, representing just 4 percent of the global population. Reflecting these troubling trends, USAID Administrator Samantha Power, during her confirmation hearing, highlighted democratic backsliding – along with climate change, conflict and state collapse, and COVID-19 – as among the “four interconnected and gargantuan challenges” that will guide the Biden Administration’s development priorities.
However, defining “democratic backsliding” is far from straightforward. Practitioners and policymakers too often refer to “democratic backsliding” broadly, but there is a high degree of variation in how backsliding manifests in different contexts. This imprecise approach is problematic because it can lead to an inaccurate analysis of events in a country and thereby inappropriate or ineffective solutions.
To prevent or mitigate democratic backsliding, policymakers need a definition of the concept that captures its multi-dimensional nature. It must include the actors responsible for the democratic erosion, the groups imperiled by it, as well as the allies who can help reverse the worst effects of backsliding.
To address this gap, the International Republican Institute developed a conceptual framework to help practitioners and policymakers more precisely define and analyze how democratic backsliding (or “closing democratic space”) is transpiring and then devise foreign assistance programs to combat it. Shifting away from broad generalizations that a country is moving forward or backward vis-à-vis democracy—which makes it difficult, if not impossible, to derive specific solutions—the framework breaks closing democratic space into six distinct, and sometimes interrelated, subsectors or “spaces.”
Political/Electoral: Encompasses the arena for political competition and the ability of citizens to hold their government accountable through elections. Examples of closing political or electoral space range from fraudulent election processes and the arrest or harassment of political leaders to burdensome administrative barriers to political party registration or campaigning.
Economic: Refers to the relationship between a country’s economic market structure, including access and regulation, and political competition. Examples of closing economic space include selective or politically motivated audits or distribution of government licenses, contracts, or tax benefits.
Civic/Associational: Describes the space where citizens meet to discuss and/or advocate for issues, needs, and priorities outside the purview of the government. Examples of closing civic or associational space include harassment or co-optation of civic actors or civil society organizations and administrative barriers designed to hamper civil society organizations’ goals including limiting or making it arduous to access resources.
Informational: Captures the venues that afford citizens the opportunity to learn about government performance or hold elected leaders to account, including the media environment and the digital realm. h. Examples of closing informational space consist of laws criminalizing online speech or activity, restrictions on accessing the internet or applications, censorship (including self-censorship), and editorial pressure or harassment of journalists.
Individual: Encapsulates the space where individuals, including public intellectuals, academics, artists, and cultural leaders– including those traditionally marginalized based on religious, ethnicity, language, or sexual orientation–can exercise basic freedoms related to speech, property, movement, and equality under the law. Common tactics of closing individual space include formal and informal restrictions on basic rights to assemble, protest, or otherwise exercise free speech; censorship, surveillance, or harassment of cultural figures or those critical of government actions; and scapegoating or harassing identity groups.
Governing: Comprises the role of state institutions, at all levels, within political processes. Typical instances of closing the governing space include partisan control of government entities such as courts, election commissions, security services, regulatory bodies; informal control of such governing bodies through nepotism or patronage networks; and legal changes that weaken the balance of powers in favor of the executive branch.
Examining democratic backsliding through this framework forces practitioners and policymakers to more precisely identify how and where democratic space is closing and who is affected. This enhanced understanding enables officials to craft more targeted interventions.
For example, analysts were quick to note Myanmar’s swift about-face toward autocracy. This might be true, but how does this high-level generalization help craft an effective policy and foreign aid response, beyond emphasizing a need to target funds on strengthening democracy to reverse the trend? In short, it does not. If practitioners and policymakers had dissected Myanmar’s backsliding using the six-part framework, it would have highlighted specific opportunities for intervention. This systematic analysis reveals the regime has closed civic space, via forbidding large gatherings, as well as the information space, by outlawing online exchanges and unsanctioned news, even suspending most television broadcasts. One could easily populate the other four spaces with recent examples, as well.
Immediately, we see how this exercise leads to more targeted interventions—support to keep news outlets operating, for example, via software the government cannot hack—that, collectively, can help slow backsliding. Using the framework also compels practitioners and policymakers to consider where there might be spillover—closing in one space that might bleed into another space—and what should be done to mitigate further closing.
Finally, using this framework to examine the strength of Myanmar’s democratic institutions and norms prior to the February coup d’etat may have revealed shortcomings that, if addressed, could have slowed or lessened the impact of the sudden democratic decline. For example, the high-profile arrest of journalists Wa Lone and Kyaw Soe Oo in December 2017 was a significant signal that Myanmar’s information space was closing. Laws or actions to increase protections for journalists and media outlets, could have strengthened the media environment prior to the coup, making it more difficult for the military to close the information space.
A more precise diagnosis of the problem of democratic backsliding is the first step in crafting more effective and efficient solutions. This framework provides practitioners and policymakers a practical way to more thoroughly examine closing space situations and design holistic policies and interventions that address both the immediate challenge and longer-term issue of maintaining and growing democratic gains globally.
Authentic Justice Thus Everlasting Peace: Because We Are One
The ceasefire in the Israeli-Palestine conflict is a good thing. We thank God for it. Be it between two individuals or institutions or nations or the internal colonial and colonized, war does not do anything except cause more immediate or future mass misery and human destruction. Our continued memories of our interpersonal and international and internal colonial and civil wars and the memorials we erect to remember them recall and record wounds and pains we never get over.
So it becomes a bothersome puzzle as to why we human beings still just don’t get that war like oppression leads to nowhere except to more human devastation. And we should have learned by now but have not that peacemaking like ceasefires mean nothing without justice.
It is the reason why I constantly find myself correcting those who stress Peace and Justice.No Justice No Peace is more than a cliche.It is real politic emotionally, economically, socially, and spiritually.
Our American inner cities like those in every continent where culturally different and similar people live cramped impoverished lives and nations and colonial enclaves with such unequal wealth remind us of their continued explosive potentialities when peace is once again declared but with no justice.Everyone deserves a decent quality of life which not only includes material necessities but more importantly emotional and spiritual freedoms and other liberations.Not just the victors who conquer and rule and not just the rich and otherwise privileged.
And until such justices are assured to everyone peacemaking is merely a bandaid on cancerous societal or International conflictual soars which come to only benefit those who profit from wars which are bound to come around again when there is no justice and thus peace such as family destroying divorce lawyers, blood hungry media to sell more subscriptions , arms dealers to sell more murderous technologies, politicians needing votes so start and prolong wars, and military men and women seeking promotion while practicing their killing capacities.
So if those of us who devoutly practice our faiths or our golden moral principles, let us say always and pray and advocate justice and peace always as a vital public good and do justice then lasting peace in our personal lives and insist that national leaders, our own and others do the same in their conduct of international affairs and affairs with those who are stateless in this global world.
All such pleading is essential since we are all brothers and sisters in the eyes of God who created all of us in God’s image as one humanity out of everlasting divine love for all of us so we should love each other as God loves all of us leading to desiring justice and thus lasting peace for each and every one of us.
This is difficult for those in international affairs to understand who take more conventional secular approaches to historical and contemporary justice and peace challenges as if our universal spiritual connectivennes ( not to be confused with the vast diversity of organized religions)as human beings which makes us all brothers and sisters has no relevance. But if we are going to find true enduring peace we have no alternative but to turn our backs on increasingly useless secular methods which go either way, stressing peace then justice or justice then peace and understand how much we must begin to explore and implement approaches which we look at each other as spiritually connected brothers and sisters in which it is the expectation that peace only comes and lasts when through the equal enjoyment of justices for every human being, we restore our universal kindred rooted in the everlasting love of God and thus for each other, no matter the different ways in which we define God or positive moral principles which originate in understandings that we human beings in all our diversities are one and thus brothers and sisters.
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