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Expectation of Privacy in Cyberspace: The Fourth Amendment of the US Constitution and an Evaluation of the Turkish Case Sanal Ortamda Mahremiyet Beklentisi: Amerikan Anayasası'nın Ek Dördüncü Maddesi ve Türkiye'deki Durumun Değerlendirilmesi

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Abstract

Privacy in cyberspace is becoming a dispute issue for the criminal justice system. Initially, we should determine what kind of cyberspace we desire, and then, we can choose a legal platform to get this online environment. Because policing in cyberspace is an inevitable need, the question of what extent the law can protect individuals' expectation of privacy in cyberspace has become an important problem. This study initially explains the legal descriptions of privacy, expectation of privacy, and cyberspace. Then, it discusses the expectation of privacy in cyberspace based on the Fourth Amendment of the United States Constitution. It also presents the current state of the privacy of private life and the privacy of communication in the Turkish judicial system. Özet Sanal âlemde kişisel giz alanı, ceza adalet sistemi açısından tartışmalı bir konu haline gelmektedir. Öncelikle, ne tür bir sanal âlem arzu ettiğimize karar vermeliyiz ve daha sonra bunu çevrimiçi ortama aktarmak için yasal bir dayanak seçebiliriz. Sanal âlemde güvenliği sağlamak kaçınılmaz bir gereksinim olduğu için hukukun sanal âlemde bireylerin giz beklentisini hangi ölçüde koruyabileceği önemli bir sorun olmuştur. Bu çalışma başlangıçta kişisel giz, giz beklentisi ve sanal âlemin hukuksal tanımlarını açıklamaktadır. Daha sonra Amerika Birleşik Devletleri Anayasası'nın dördüncü ilave maddesi çerçevesinde sanal âlemde giz beklentisini tartışmaktadır. Çalışma aynı zamanda Türk adalet sisteminde bugünkü özel yaşamın gizliliği ve iletişim gizliliğini ortaya koymaktadır.
Sosyoekonomi / 2012-2 / 120201. İlker PEKGÖZLÜ & Mustafa Kemal ÖKTEM
Sosyo
Ekonomi
Temmuz-Aralık 2012-2
Expectation of Privacy in Cyberspace: The Fourth
Amendment of the US Constitution and an Evaluation
of the Turkish Case
İlker PEKGÖZLÜ Mustafa Kemal ÖKTEM
ipekgozlu@egm.gov.tr kemalok@hacettepe.edu.tr
Sanal Ortamda Mahremiyet Beklentisi: Amerikan Anayasası’nın Ek
Dördüncü Maddesi ve Türkiye'deki Durumun Değerlendirilmesi
Abstract
Privacy in cyberspace is becoming a dispute issue for the criminal justice
system. Initially, we should determine what kind of cyberspace we desire, and then, we can
choose a legal platform to get this online environment. Because policing in cyberspace is
an inevitable need, the question of what extent the law can protect individuals’ expectation
of privacy in cyberspace has become an important problem. This study initially explains
the legal descriptions of privacy, expectation of privacy, and cyberspace. Then, it discusses
the expectation of privacy in cyberspace based on the Fourth Amendment of the United
States Constitution. It also presents the current state of the privacy of private life and the
privacy of communication in the Turkish judicial system.
Keywords : e-Privacy, e-Government, Turkish Public Administration.
JEL Classification Codes : M15, K11, K23, K42.
Özet
Sanal âlemde kişisel giz alanı, ceza adalet sistemi açısından tartışmalı bir konu
haline gelmektedir. Öncelikle, ne tür bir sanal âlem arzu ettiğimize karar vermeliyiz ve
daha sonra bunu çevrimiçi ortama aktarmak için yasal bir dayanak seçebiliriz. Sanal
âlemde güvenliği sağlamak kaçınılmaz bir gereksinim olduğu için hukukun sanal âlemde
bireylerin giz beklentisini hangi ölçüde koruyabileceği önemli bir sorun olmuştur. Bu
çalışma başlangıçta kişisel giz, giz beklentisi ve sanal âlemin hukuksal tanımlarını
ıklamaktadır. Daha sonra Amerika Birleşik Devletleri Anayasası’nın dördüncü ilave
maddesi çerçevesinde sanal âlemde giz beklentisini tartışmaktadır. Çalışma aynı zamanda
Türk adalet sisteminde bugünkü özel yaşamın gizliliği ve iletişim gizliliğini ortaya
koymaktadır.
Anahtar Sözcükler : e-Mahremiyet, e-Devlet, Türk Kamu Yönetimi.
İlker PEKGÖZLÜ & Mustafa Kemal ÖKTEM
8
Acknowledgement
Initial version of this paper has been presented to the “MIC 2010 Management
International Conference on Social Responsibility, Professional Ethics, and Management
organized by University of Primoska, University Emuni and Hacettepe University in
Ankara on 24-27 November 2010.
Beyan
Bu makalenin ilk hali, Primoska Üniversitesi, Emuni Üniversitesi ve Hacettepe
Üniversitesi tarafından Ankara'da 24–27 Kasım 2010'da düzenlenen “MIC 2010 Kurumsal
Sosyal Sorumluluk, Mesleki Etik ve Yönetim konulu Uluslararası Yönetim Konferansı”na
sunulmuştur.
Expectation of Privacy in Cyberspace: The Fourth Amendment
of the US Constitution and an Evaluation of the Turkish Case
9
1. Introduction
While civilization progresses, generally, old but not aging concepts meet to new
ones. A fundamental human right “privacy” is becoming a dispute issue for professional
ethics, the criminal justice system, management of public organizations, and information
society since electronic communication has brought a new notion called “cyberspace.”
As communications and markets are moving into this electronic realm, and
millions of people in the world communicate using the Internet, cyberspace is turning into
a place in which many crimes can be committed easily. Therefore, it is inevitable for law
enforcement officials to monitor and engage investigations in the Internet. However, these
investigations can cause intrusions to privacy domains of individuals.
Regarding expectation of privacy in cyberspace issue, Grosso (1994) comments
“[w]henever new technology becomes prevalent, the law enters a period of struggle to find
adequate means for resolving disputes involving that technology, and for protecting the
rights of people affected by it. We are now in such a period.”
Initially, we should determine what kind of cyberspace we desire, and then, we
can choose a legal platform to get this online environment. Because policing in cyberspace
is an inevitable need, the question of what extent the law can protect individuals’
expectation of privacy in cyberspace becomes an important issue.
2. The Concepts of Privacy, Expectation of Privacy, and Cyberspace
Legal descriptions are required in order to understand concepts in connection
with privacy, expectation of privacy, and cyberspace. In Black’s Law Dictionary, privacy
is described as;
“the condition or state of being free from public attention to intrusion into
or interference with one’s acts or decisions” (Garner, 2004).
In the realm of privacy in cyberspace, the important issue is the protection of
informational privacy. In Black’s Law Dictionary, informational privacy is described as;
“a private person’s right to choose to determine whether, how, and, to what
extent information about oneself is communicated to others, especially
sensitive and confidential information” (Garner, 2004).
İlker PEKGÖZLÜ & Mustafa Kemal ÖKTEM
10
Katyal (2003) writes that at first, informational privacy developed under the
conception that personal papers completely and clearly identified the people whose lives
they explained. However, “today, the perception of informational privacy extends, at least
in cyberspace, to something quite different: It covers the very act of creating fictive
personalities, in addition to the possibility of anonymously publishing information online”
(Katyal, 2003).
When the issue is about expectation of privacy in cyberspace, the concept of
expectation of privacy should be considered as well. In Black’s Law Dictionary,
expectation of privacy is described as;
“a belief in the existence of the right to be free of governmental intrusion in
regard to a particular place or thing” (Garner, 2004).
Reasonable expectation of privacy is affected by information and
communication technologies which influence human capabilities to access information at a
distance. As a result, space is no longer a marker for showing boundaries between private
and public interactions. In the new world of information and communication, the private
objects, such as electronic files, are quite different from objects, such as physical and
tangible objects, which were formerly the subjects of privacy (Waldo, Lin, and Millett,
2010).
On the other hand, the Internet and cyberspace are necessary concepts in the
issue of expectation of privacy in cyberspace. According to the court in American Civil
Liberties Union v. Reno “the Internet is not a physical or tangible entity, but rather a giant
network which interconnects innumerable smaller groups of linked computer networks. It
is thus a network of networks” (American Civil Liberties Union v. Reno, 1996).
Although some technical distinctions exist between them, the terms of
“cyberspace” and “Internet” are used interchangeably as referring to the virtual space
created by “the (potential) interconnection between any of millions of computers located
around the world” (Froomkin, 2003).
Yen (2002) describes cyberspace as “the virtual space created by operation of
the Internet, a network of computers that share information with each other.”
Ferrera et al. (2001) explain that cyberspace is the “term originally used by
William Gibson in his 1982 novel Neuromanner. The totality of all the world’s computers,
represented as a visual virtual three dimensional domain in which a user may move and act
with the consequences in the real world.”
Expectation of Privacy in Cyberspace: The Fourth Amendment
of the US Constitution and an Evaluation of the Turkish Case
11
According to Gleason and Friedman (2004), the challenge in conception of
cyberspace is to define it positively. The first step to express clearly an accessible
conception of cyberspace is to define what cyberspace is not.
“It is not the physical world, and it is not a ‘parallel universe.’ It is not the
creation of any one person or group of persons. It is not its protocols, and it
is not the machines or software on which it runs. It is connected to all these
things, and yet it is something transcendent; it is neither purely technical
space nor purely social” (Gleason and Friedman, 2004).
There are different methods of communication and information exchange over
the network for the Internet users. Since the methods of communication and information
access are continually developing, it is not easy to categorize in brief. The most common
methods of communications on the Internet can be generally grouped into six categories:
(1) one-to-one messaging (such as “e-mail”), (2) one-to-many messaging
(such as “listserv”), (3) distributed message databases (such as “USENET
newsgroups”), (4) real time communication (such as “Internet Relay Chat”),
(5) real time remote computer utilization (such as “telnet”), and (6) remote
information retrieval (such as “ftp,” “gopher,” and the “World Wide Web”).
In order to transmit data, text, visual images, computer programs, sound,
and moving video images, these methods of communication can be used
(American Civil Liberties Union v. Reno, 1996).
There are efforts to secure privacy in cyberspace. According to Harvard Law
Review Association (1997), mainly, three methods are used to restrict access to the
Internet communication. The basic way is “security through obscurity.” This approach
assumes that communication will be protected if it is not known by the public where the
message is. However, the secrecy cannot be guaranteed since someone can leak the
location. Therefore, this approach is not effective for privacy (Harvard Law Review
Association, 1997). The second way is using a gateway that requires the Internet user to
submit certain information before going on any further. Some gateways only ask user to
confirm some information, which is ineffective method. However, some gateways use
complex techniques that requires password for access (Lessig, 1996).
There is still privacy problem since “hackers” may try to get password to break
into the system (Harvard Law Review Association, 1997). Encryption is another method of
restricting access to cyberspace communication. There are many kinds of encryption
ranging from the use of foreign languages to simple mathematical codes to complex
algorithms. Without a key, it is very difficult to decode these encryptions (Grosso, 1994).
Since the system administrator is able to monitor all information transmitted into or out of
İlker PEKGÖZLÜ & Mustafa Kemal ÖKTEM
12
the network, each of these methods of securing privacy in cyberspace is limited (Harvard
Law Review Association, 1997).
3. Legal Basis
The Fourth Amendment to the United States Constitution constitutes “[t]he right
of the people to be secure in their persons, houses, papers and effects, against unreasonable
searches and seizures, shall not be violated, and no warrants shall issue, but upon probable
cause, supported by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” With considering the explanation of
expectation of privacy above, the Fourth Amendment protects people against unreasonable
searches and seizures of government officials. In connection with the privacy, the concept
of house is very important in the Fourth Amendment. Because the intention was to protect
against property-based warrants, early Fourth Amendment jurisprudence concentrated on
requirements of space and place (Hunter, 2003). Specifically, the three basic spaces of
protection are the individuals’ physical selves (“persons”), their real property (“houses”),
and their personal property (“papers, and effects”) (Hunter, 2003).
However, according to Seidman, the Fourth Amendment does not protect
informational privacy per se (Seidman, 1995). Modern Fourth Amendment law assumes
that because the government is entitled to seize any item that is useful in any way to a
criminal investigation, the government can access to information if a need can be
established (Seidman, 1995).
Initially, the Supreme Court assessed the Fourth Amendment in the perspective
of a location. In Olmstead v. United States, the Court showed this assessment when it
allowed government officials to wiretap the suspects' houses (Olmstead v. United States,
1928). The Supreme Court found no Fourth Amendment violation when wiretapping since
there was no trespass into a constitutionally protected area (Olmstead v. United States,
1928). Even though, firstly, in Olmstead v. United States only inspections that physically
trespassed upon constitutionally protected areas were considered “searches,” in Katz v.
United States, the Supreme Court set up that an inspection may be a search regardless of
any physical invasion (Katz v. United States, 1967).
In Katz v. United States, the Supreme Court held that no physical trespass is
required to violate the Fourth Amendment. The Constitution protects people, not places;
thus, the Fourth Amendment protection is with person wherever he or she goes (Katz v.
United States, 1967). The Court maintained that as long as their behaviors give them
expectation of privacy, people are entitled to a reasonable expectation of privacy wherever
they may be (Katz v. United States, 1967).
Expectation of Privacy in Cyberspace: The Fourth Amendment
of the US Constitution and an Evaluation of the Turkish Case
13
In Katz v. United States, the Court set up a two-part test to determine whether a
protected privacy interest exists: (1) whether a person has displayed an “actual (subjective)
expectation of privacy” and (2) whether that “expectation be one that society is prepared to
recognize as reasonable” (Katz v. United States, 1967).
The existence of a legitimate expectation of privacy is subject to a main
restriction: “[w]hat a person knowingly exposes to the public, even in his own home or
office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as
private, even in an area accessible to the public, may be constitutionally protected” (Katz
v. United States, 1967).
The case of Kyllo v. United States addresses the use of the thermal imaging
devices in law enforcement to detect heat signatures radiating from a house for the
purposes of drug prevention (Kyllo v. United States, 2001). The issue was whether the use
of a device that was not in general public use to explore details of a private home
constitutes an unreasonable search. The Court held that the use of thermal imaging
technology to detect heat signatures radiating from a house was a search although the
device could not penetrate the walls of the house (Kyllo v. United States, 2001).
According to Harvard Law Review Association (1997), when resolving the
scope of the Fourth Amendment, courts and writers have generally put similarities from
previous court examples. For instance, commentators have compared e-mail to postal mail.
Persons have a reasonable expectation of privacy in sealed first-class mail sent through the
postal system. However, since anyone can read the contents of a postcard, an expectation
of privacy in its contents would be unreasonable and a law enforcement officer's reading it
is, therefore, not a search (Harvard Law Review Association, 1997).
One approach is that e-mail, which “can be accessed or viewed on intermediate
computers between the sender and recipient unless message is encrypted,” may more
closely look like a postcard than a letter (American Civil Liberties Union v. Reno, 1996).
However, an e-mail can take many different paths between its source and destination
computers (American Civil Liberties Union v. Reno, 1996). Each message is divided into
small packets that are transmitted separately probably along different route. Therefore,
only the sender and recipient can receive the actual message. An expectation of privacy in
the e-mail message may be reasonable if system administrators on these computers have
accepted not to read e-mails (Harvard Law Review Association, 1997). On the other hand,
when the recipient opens the e-mail, the government officials may get the e-mail from the
recipient or seize the recipient’s copy of the e-mail. In this regard, there is no the Fourth
Amendment violation. e-Mails sent to large numbers of persons also do not have the
Fourth Amendment protection (United States v. Maxwell, 1996).
İlker PEKGÖZLÜ & Mustafa Kemal ÖKTEM
14
The second analogy makes comparison between cyberspace communication and
telephone calls (American Civil Liberties Union v. Reno, 1996). After Katz v. United
States, the Supreme Court has ruled that a person’s expectation of privacy in land-wired
telephone calls is reasonable (Katz v. United States, 1967). However, lower courts have
recognized as unreasonable an individual’s expectation of privacy in cordless telephone
calls (McKamey v. Roach, 1995; Tyler v. Berodt, 1989). According to the U.S. Court of
Appeals (Fifth Circuit) whether an expectation of privacy in a conversation on a cordless
phone is reasonable will depend upon the particular characteristics of the phone (United
States v. Smith, 1992). Even though cyberspace communication may be captured along the
road of transmission, whether the possibility of such interception is big enough to turn into
an expectation of privacy unreasonable is unclear (Harvard Law Review Association,
1997).
The third analogy holds cyberspace as a place. Even though in Katz v. United
States, the Supreme Court held that “the Fourth Amendment protects people, not places,”
the Amendment protects privacy to some degree, which is related to the place inspected
(Katz v. United States, 1967). Courts and commentators declare that the protection of the
home privacy (Payton v. New York, 1980) does not constitute a reasonable expectation of
privacy in “open fields” although a fence and “no trespassing” signs exist (Oliver v. United
States, 1984). However, since the structure of cyberspace is different from traditional
places, it has important restrictions to compare cyberspace to a place that the Fourth
Amendment protects. Finally, these similarities do not give a clear structure to apply the
Fourth Amendment rules in cyberspace (Harvard Law Review Association, 1997).
Another debating issue is encryption in cyberspace. Kerr explains that even
though the Internet is a recent concept that has brought about revolutionary change, some
debates regarding the Fourth Amendment caused by encrypting Internet communications
are not new. The cases in which the Fourth Amendment was applied disclosure that
decrypting an Internet communication cannot itself transgress a “reasonable expectation of
privacy” and thus cannot violate the Fourth Amendment. Consequently, decrypting
Internet communications by government officials do not constitute a violation of the
Constitution (Kerr, 2001).
Regarding expectation of privacy in cyberspace, the other issue is chat rooms. In
U.S. v. Charbonneau, the District Court ruled that “when [a person] engages in [a] chat
room conversations, [he or she] runs the risk of speaking to an undercover agent.
Furthermore, [this person] cannot have a reasonable expectation of privacy in the chat
rooms. In addition, all e-mail sent or forwarded to the undercover agents is not protected
by the Fourth Amendment” (U.S. v. Charbonneau, 1997).
Expectation of Privacy in Cyberspace: The Fourth Amendment
of the US Constitution and an Evaluation of the Turkish Case
15
Similarly, many cases show that communicating with large groups in the
Internet is not protected by the Fourth Amendment (Kerr, 2010). Kerr (2010) argues that
an Internet user has no Fourth Amendment rights if he or she posts information on a public
web page (United States v. Gines-Perez, 2002). Kerr (2010) also discusses that reasonable
expectation of privacy is waived when an individual shares files with others on an open
computer network (United States v. King, 2007). Kerr (2010) additionally explains that if
an individual sends a message to a large group which includes a confidential informant, the
message can be read and sent to the police by the informant without violating the Fourth
Amendment (Hoffa v. United States, 1966; United States v. King, 1995).
There are exceptions to the Fourth Amendment's warrant requirement and three
of them are important in cyberspace issue: (1) when consent to search has been given
(Schneckloth v. Bustamonte, 1973), (2) when the information has been disclosed to a third
party (United States v. Miller, 1976), and (3) when the information is in plain view of an
officer (Horton v. California, 1990). There is no warrant requirement when a sender gives
consent to a law enforcement officer to read the communication (Schneckloth v.
Bustamonte, 1973).
Although the sender does not give any consent to a search, a third party who has
the authority of search over the object may search. A third party’s authority to consent is
based “on mutual use of the property by persons generally having joint access or control
for most purposes” (United States v. Matlock, 1974). On a computer network, “[w]hether
the system manager has the right to consent will depend upon how the rights of access and
control are allocated between the system manager and the user” (Sergent, 1995).
The last exception is the plain view exception, which may apply “objects,
activities, or statements that [a person] exposes to the ‘plain view’ of outsiders are not
‘protected’ because no intention to keep them to himself has been exhibited” (Katz v.
United States, 1967). The simple observation of an object in plain view is not a search
(Horton v. California, 1990). Since public can access to the Internet freely, law
enforcement agents have no less right to browse the Internet than other persons do. In
addition, expectation of informational privacy in a place that public can observe plainly by
browsing is unreasonable, and “once someone places data or other evidence onto a
computer in a publicly-accessible manner, they lose any expectation of privacy in the
information” (Winick, 1994).
4. Concluding Remarks and Implications for the Turkish Case
Even if the Internet communication holds necessary conditions of privacy such
as password protection, courts could claim many reasons to rule that no reasonable
expectation of privacy exist in cyberspace communication. One reason is that users are
İlker PEKGÖZLÜ & Mustafa Kemal ÖKTEM
16
aware of interception by various unspecified system administrators in any Internet
communication; therefore, in this condition, there is no reasonable expectation of privacy.
The other reason is that there are backup files, which are automatically stored on the
network, and users have no standing to object to the search of these backup files. Another
important reason is that computer network is a new concept for society in connection with
expectation of privacy in the communication (Harvard Law Review Association, 1997).
Kerr discusses whether the Fourth Amendment is a sufficient means for
protecting privacy in cyberspace, and writes that since the judges do not want to establish
one Fourth Amendment for the physical world and another for cyberspace, they will
enforce the physical world’s standards constituted by the Fourth Amendment to the
Internet world (Kerr, 2001). Continuing, Kerr suggests that this approach may give some
confusing outcomes, and writes “[w]hat we expect would be protected by the Fourth
Amendment may not be” (Kerr, 2001). In addition to Kerr’s discussion, Katyal (2003)
comments although many persons insist on keeping a reasonable expectation of anonymity
and share files in cyberspace, it is unclear whether an individual can hold both rights
simultaneously.
As Kerr (2010) suggests based on LaFave et al.’s comments that currently, it is
highly unclear how the Fourth Amendment applies to the government surveillance of
Internet communications. He discusses two explanations for the reasons. First, when
Congress enacted the Electronic Communications Privacy Act in 1986, it extended the
electronic surveillance statutes to e-mail messages and computer. Since the statute clearly
protects the rights, possible constitutional challenges of its less protection compared to the
Fourth Amendment have not drawn attention. Second, child pornography offense, the most
common type of computer crime, is mostly related to search and seizure of stand-alone
computers instead of online surveillance. Therefore, “the Fourth Amendment rules
governing online surveillance have remained largely unexplored” (Kerr, 2010).
It is clear that privacy in cyberspace is continuing to become more important
and frail issue. Depending on developing technology and new different situations, the
interpretations of the Constitution can be difficult to hold cases.
While cyberspace is becoming a real fact into all persons’ lives, not only the
criminal justice system of the United States but also the judicial system in Turkey should
adapt itself to this change by balancing the rights and the rules.
In the Turkish case, there are at least two different approaches for any legal
problem in social life: One is to regulate any problem by passing a new law (however, on
e-communication matters there is a lack of even new legal regulations, since the judicial
system could naturally not keep up with new technological developments); and on the
Expectation of Privacy in Cyberspace: The Fourth Amendment
of the US Constitution and an Evaluation of the Turkish Case
17
contrary, the second opinion is that it is not possible to prevent any misconduct on
information privacy by new laws.
This second idea would be based on a view that Turkish society and
administrative system is different than any European country or the U.S. Thus, making
new laws would not be enough; for example, it is critical to inhibit any illegal interception
to privacy through some technological devices, which are legally or illegally available in
the market (or sometimes in the black-market). This opinion defends that it is important to
have a strong political desire to take care of privacy matters in the society.
If we remember Gleason and Friedman’s (2004) conception of cyberspace again
and try to formulate it in a more tangible perspective, it is almost non-existent, it is in
nowhere, but in fact it is everywhere, and it is strongly influential in citizens’ lives: "It is
both the physical world and a ‘parallel universe.’ It is connected to all such elements: the
creation of one person or group of persons, protocols, the machines and software on which
it runs, and yet it is something transcendent. However, it is neither purely technical space
nor purely social." For that reason, it is even more difficult to define, diagnose, limit,
compensate, decide, and manage it. It takes more courage and professionalism to handle it
properly in a manner to best suit to the people’s needs and balance public interest.
In this regards, Turkish Constitution of 1982 has faced a hot debate recently,
and some articles on basic rights and their amendments were voted in September 2010
referendum in the search of better protecting basic rights and a more democratic system.
Amendment 2 for article 20 brought an additional paragraph on privacy rights1, and states
that this issue shall be regulated by law in detail. Even so, no amendment is complete.
There will be always a need for better frameworks.
The protection of individual privacy against intrusions and assaults has been
also discussed by academicians and practitioners in Turkey. Although there are different
types of intrusions to privacy domains of persons, these intrusions can be categorized
under three topics: secretly accessing to privacy domain of individual, recording by
technical devices, and dissemination and transmission (Zevkliler, Acabey, and Gökyayla,
1999: 468-475).
1 Amendment 2: Everyone has the right to demand the protection of his or her personal information. This right
also involves to be informed about the information related to one’s own, access to this information, to request
their correction and deletion and to know about whether these data are utilized in accordance with the
purposes. Personal information shall only be processed in accordance with the conditions anticipated by law
or with the express consent of the person. Principles and procedures on the protection of personal
information shall be regulated by law.
İlker PEKGÖZLÜ & Mustafa Kemal ÖKTEM
18
The privacy area of a person can be secretly accessed by secretly listening,
observing, or reading individual letters, memories, or documents. Even though a person
can be listened simply by ear, some technical devices can be used for secret listening.
While entering one's house or office without consent of that person and reading his or her
personal letters or papers is considered as intrusion to privacy, reading these papers by
seizing his or her communication tools or devices is also deemed as intrusion to personal
privacy (Zevkliler, Acabey, and Gökyayla, 1999: 468).
Actions related to recording private papers, pictures, videos, or talks secretly
include not only secretly accessing to privacy domain of a person but also recording these
private and personal data and information on tapes, films, or similar backup devices. In
that case, these records are always kept by the perpetrator which means there is an ongoing
assault (Zevkliler, Acabey, and Gökyayla, 1999: 469).
Distributing a person's letters, memories, papers, videos, pictures, or sound
records to other people or broadcasting these personal private items to the community is
also a kind of intrusion to privacy domain of individual, which is discussed under the topic
of dissemination and transmission. When a person gives consent to be published his or her
documents, memories, speech, or images, publishing these personal items in a way which
is different from the way permitted by the person is also considered as a type of intrusion
to privacy (Zevkliler, Acabey, and Gökyayla, 1999: 469).
Actually, the privacy issue was assured by different laws in Turkey. Persons are
protected against intrusions to privacy domains of individuals primarily by the
Constitution (Article 15–17) and Civil Code (Article 24), and by other laws such as, Penal
Code, Intellectual Property Act, and Code of Obligations (Zevkliler, Acabey, and
Gökyayla, 1999). For example, according to the Article 15 of the Constitution (TC
Anayasa Mahkemesi, 2011), "... the individual's right to life, and the integrity of his or her
material and spiritual entity shall be inviolable...," and the Article 17 of the Constitution
(TC Anayasa Mahkemesi, 2011) constitutes "[e]veryone has the right to life and the right
to protect and develop his material and spiritual entity." Similarly, according to the Article
24 of Civil Code (TÜSEV, 2011), "[t]he person subject to assault on his/her personal rights
may claim protection from the judge against the individuals who made the assault. Each
assault against personal rights is considered contrary to the laws unless the assent of the
person whose personal right is damaged is based on any one of the reasons related to
private or public interest and use of authorization conferred upon by the laws."
Additionally, “Information Access Right Law No. 4982 of 2003” and the by-law
(Regulation for Implementing the Information Access Right Law, 2004) on its
implementation has endeavored to give citizens the right to demand information on acts
and actions of public administration, which has enormous resources and records of
Expectation of Privacy in Cyberspace: The Fourth Amendment
of the US Constitution and an Evaluation of the Turkish Case
19
information including private data. The article 222 has excluded access to communication
privacy. The article 213 deals with privacy of private life, and it draws the private sphere as
information records on personal health, private and family life, and personal honor,
professional and financial documents to protect unjust competition.
Turkish Information and Communication Technologies Authority4 makes a
definition on privacy by its ordinance5 such as; "Personal Information/Data: Any
information related with real and/or legal persons which can be defined directly or
indirectly by using one or more elements of identity card number or physical,
psychological, intellectual, economic, cultural and social identities or health related,
genetic, ethnic, religious, family related and political information."
Although we would also love to power the country’s future with technology as
in the U.S. (Swire, 2009)6, where e-Government Act of 2002 has went into effect (Swire,
2009)7, unfortunately, in Turkey, a law on e-government with a precise definition of its
processes and procedures has not been yet enacted. Moreover, we should be deeming of
another step forward and try to take measures on how to require use of "privacy impact
assessments" (Swire, 2009)8 for new computer systems as to become a best practice for
public administration.
Academicians and practitioners should work together for public service by re-
conceptualizing how to formulate new regulations on privacy and how to apply them in
today’s high-technology background. The emerging problems are believed to be overcome
2 The privacy of communication: Article 22: Information and documents that would violate the basis of
communication privacy are beyond the scope of the information access right.
3 The privacy of private life: Article 21: With the proviso where the consent of the concerned individual has
been received, the information and documents that will unjustly interfere with the health records, private and
family life, honour and dignity, and the economical and professional interests of an individual, are out of the
scope of the right to information. Due to public interest considerations, personal information or documents
may be disclosed by the institutions on the condition that concerned individual is notified of the disclosure at
least 7 days in advance and his/her written consent is obtained.
4 There is a criticism that the establishing law for this Authority has been amended and rejected, but the
legislation has not yet been finalized to clearly define and limit boundaries of privacy.
5 According to the Unofficial Translation of Ordinance on Personal Information Processing and Protection of
Privacy in The Telecommunications Sector (prepared on the basis of Telegram and Telephone Law No: 406 of
4/2/1924 and Wireless Law No: 2813 of 15/4/1983); this ordinance covers real and legal persons providing
or using services in the telecommunications sector, accessed on 27.8.2010:
(http://www.tk.gov.tr/eng/pdf/data_protection.pdf).
6 Please see: http://www.whitehouse.gov/omb/egov/index.html in Swire (2009).
7 Pub. L. No. 107-347, 116 Stat. 2899, 2002 in Swire (2009).
8 R. Steve Edmondson, Ohio Off. Info. Tech., Privacy Impact Assessments (2008), (http://
www.oit.ohio.gov/IGD/policy/pdfs_bulletins/ITB-2008.02.pdf (implementing statutory requirements) in Swire
(2009).
İlker PEKGÖZLÜ & Mustafa Kemal ÖKTEM
20
by introducing some new principles like the “Proportionality Principle” (Swire, 2009),
which “applies to government access to personal data” “where greater intrusiveness of
government action leads to greater safeguards”, “to review the propriety of sanctions” and
“to measure the legality of a wide range of government conduct through some form of
means-ends analyses”, as a general principle of public law, applicable to constitutional
law, also to administrative law for government surveillance systems, “with a rational
bureaucratic process to ensure that the intrusiveness of the systems is matched with
proportionate procedural protections”.
The next challenge would be to integrate Turkish privacy protection system into
the broader international debate, for example with European countries. Swire (2009)
reminds that “the Europeans create legal protections, and those structures appear stable and
workable9.”
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