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Balancing location privacywith national security: A comparative analysis of three countries through the balancing framework of the European court of human rights

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Abstract

Location based services (LBS) are among ICT developments that potentially put the privacy of individuals at risk. LBS technology allows for tracking and tracing the location of mobile phones or other terminal equipment. The increased possibility to know people's whereabouts, both in a geographical and temporal sense, is posing the question of possibility versus desirability with regard to location privacy. The central question that this article aims to answer is how may location privacy needs of cell phone users be balanced with national security needs of society? Through a study of literature and rulings of the European Court of Human Rights a balancing framework was developed. The framework allowed for the assessment of the situation in the Netherlands, Germany and Canada with respect to the location data from mobile devices used by intelligence and security agencies to protect the national security. The research shows that the balancing should account for the totality of the circumstances. As for general interferences with the right to privacy also interferences with location privacy are very contextsensitive. A true balancing should be accomplished on a case-by-case basis. It is not a priori to be determined whether and to what extent location privacy is at stake. In all case studies similar requirements were found that should be taken into account in the decision what means to use in which instances. From the available published data, we expect that the use of these means varied among the case studies significantly, however. A proper balancing strongly builds on the balancing process, especially when balancing is very context-sensitive. This process should be just with adequate safeguards against abuse.

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