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OriKivityFirstPaper 4 - 02 May 2015 - Main.OriKivity
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< | THE CONSTITUTIONAL RIGHT TO PRIVACY IN ISRAEL: DIGNITY VERSUS LIBERTY | >
> | THE CONSTITUTIONAL RIGHT TO PRIVACY IN ISRAEL: DIGNITY VERSUS LIBERTY | | | | |
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Most constitutional democracies recognize a right of privacy explicitly in their constitution. In many of the countries privacy is not explicitly recognized in the constitution, such as the United States, Ireland and India, the courts have found constitutional protection to the right to privacy in other provisions. Different systems of constitutional interpretation will result in different scopes of the right to privacy. The boundaries and content of what is considered the private domain which ought to be protected from state (or private) intervention vary between political and social cultures.
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1. The Constitutional Right to Privacy: Dignity Versus Liberty | >
> | Introduction | | | | |
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< | The constitutional right to privacy may underpins different key values. Many believe that the connection between the values of Liberty and Human Dignity to the constitutional right of privacy is essential for understanding the right's meaning and scope. Liberty and Human Dignity are both core values which are considered to be the foundation of modern democratic societies. Liberty is the founding value of the American Revolution and it has an important role in the United States' constitutional scheme. Human Dignity has a long history. Originally, it was rooted in the theological concept of the human creation in the image of God. In the modern context, Human Dignity mainly function as an extension of the Kantian Enlightenment-era concepts. It became a constitutional right only in post-World War II constitutional democracies. This is the case in Germany, South Africa, Poland, and Israel, where human dignity is regarded to be an important constitutional right. | >
> | The boundaries and content of what is considered the private domain which ought to be protected from state (or private) intervention vary between political and social cultures. The right to privacy may underpin different key values. Many believe that the connection between the values of Liberty and Human Dignity to the right to privacy is essential for understanding the right's meaning (see Robert Post, Three Concepts of Privacy and James Whitman, Two Western Cultures of Privacy: Dignity versus Liberty). Liberty and Human Dignity are both core values which are considered to be the foundation of modern democratic societies. Liberty is the founding value of the American Revolution and has an important role in the United States' constitutional scheme. Human Dignity was rooted in the theological concept of the human creation in the image of God and, in the modern context, mainly functions as an extension of the Kantian Enlightenment-era concepts. It became a constitutional right in post-World War II constitutional democracies. | | | | |
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In "Three Concepts of Privacy", Robert Post distinguishes the contrast between privacy as an aspect of Human Dignity and privacy as an aspect of Liberty. Post argues that "Privacy as dignity safeguards the socialized aspects of the self; privacy as freedom safeguards the spontaneous, independent, and uniquely individual aspects of the self. […] Privacy as dignity seeks to eliminate differences by bringing all persons within the bounds of a single normalized community; privacy as freedom protects individual's autonomy by nullifying the reach of that community" (Post, p.2095). In "The Two Western Cultures of Privacy: Dignity Versus Liberty", James Q. Whitman asserts that while continental privacy protections are a form of protection of a right to respect and personal dignity, the American right to privacy is the right to freedom from intrusions by the state, especially in one's own home. The prime enemy of privacy according to the continental conception is any actor which spared humiliation and danger our public dignity (Whitman, p.1161). However, the prime danger from the American point of view, is that "the sanctity of [our] home[s]," will be breached by government actors (Whitman, p.1162). Indeed, under the American paradigm "liberty protects the person from unwarranted government's intrusions into a dwelling or other private places" ( Lawrence v. Texas, 539 U.S. 558 (2003)).
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> | Dignity versus Liberty in Privacy Context | | | | |
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< | A Liberty-based-right to privacy would be established on ideas of individual will and consent, while a Dignity-based-right to privacy rests on recognition of the person’s physical and mental integrity, his humanity, and his value as a person. The first insists that individuals should be allowed to define themselves. The second "depends upon intersubjective norms that define the forms of conduct that constitute respect between persons" (Post, p.2092). Individuals may approve certain actions which would infringe their Dignity. A voluntary slavery might pose less Liberty concerns than Human Dignity ones. Our approval to publicly present our body after our death might not infringe the right to Liberty but in certain circumstances would violate the Dignity of the dead person. Nonetheless, in many cases both Human Dignity and Liberty would protect the same domain, due to their common concern about individual's autonomy. | >
> | A Liberty-based-right to privacy would be established on ideas of individual will and consent, while a Dignity-based-right to privacy rests on recognition of the person’s physical and mental integrity, his humanity, and his value as a person. This distinction is not merely theoretical, it also has practical implications. Individuals may approve certain actions which would infringe their Dignity. A voluntary slavery might pose less Liberty concerns than Human Dignity ones. Take also, for instance, the issue of private databases. Nowadays more than ever before, sensitive personal information is being held by private companies. A right to privacy based on freedom from state intervention will not raise much concern in this regard. Also, the mere holding of personal data that bear minor burdens on individual's daily conduct and that is being held under prior consent, would not be very problematic from a Liberty-based-right to privacy perspective. Yet, from a Dignity perspective, databases may raise concerns by their very existence. The treat here is not only the possibility of abusive use, but rather the mere intrinsic violation of the Dignity of human beings who became commoditized objects. | | | | |
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< | 2. The Constitutional Right to Privacy in Israel: Dignity-Based-Right | >
> | The Israeli Constitutional Dignity-Based-Right to Privacy: from Theory to Reality | | | | |
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< | The state of Israel was established as a collectivist and socialist society. Only from the seventies of the last century Israeli society started to shift towards an individualistic and liberal values. The enactment of the 1992 Israeli Basic Law: Human Dignity and Liberty initiated a new constitutional era in Israel, under which Human Dignity became the corner stone of the Israeli bill of rights. The Israeli Supreme Court treated Human Dignity as a “framework right” or a “mother-right” from which derivative rights may be generated and emphasized its important role in the Israeli constitutional schema. Section 7 of the Basic Law expressly protects the right to privacy of all persons. The Israeli Supreme Court has repeatedly pointed out that the constitutional right to privacy is closely related to Human Dignity. In this respect, the Israeli understanding and interpretation of the right to privacy is more similar to the continental paradigm than to the Anglo-American tradition. | >
> | Until 1995, Israel was not considered to be a constitutional democracy (see CA 6821/93 Bank Mizrahi). The right to privacy was mainly protected by the 1981 Israeli Privacy Protection Act (PPA). Initially, the courts adopted a narrow interpretation of the Act. However, the enactment of the 1992 Israeli Basic-Law: Human Dignity and Liberty initiated a new constitutional era in Israel, under which Human Dignity became the corner stone of the Israeli Bill of Rights. This "Constitutional Revolution" led the courts to recognize a broader scope of protection for the right to privacy, one which is highly connected with Human Dignity. For instance, while in 1988 the Supreme Court held that obtaining an evidence against a suspected of possessing drugs by forcing him to drink salt water which caused him to vomited the drug packages do not infringe on his right to privacy (see FH 9/83 Vaknin [Hebrew]), in 2006 the Supreme Court ruled that photographs showing the woman having sexual relations with another man cannot be submitted by her husband as evidence since they infringe on the wife's right to privacy (see HCJ 6650/04 Doe [Hebrew]). These different approaches reflect different constitutional eras. The first era, one of a narrow statutory right to privacy, and the second era, one of a broad constitutional Human-Dignity-based right to privacy. By this instance, the Israeli right to privacy then started to become closer to the continental paradigm than to the Anglo-American tradition (see Omer Tene, The Right to Privacy under the Basic Law [Hebrew]). | | |
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< | However, although this observation may reflect the underline core value and content of the constitutional right to privacy in Israel, it does not fully reflect the actual extent of the right's protection. The extent of the right's protection prescribes the legal limitations on the exercise of the right within its scope. Limitations on constitutional rights may be justified if they satisfy constitutional scrutiny. Under Israeli Proportionality scrutiny, the question is whether the legal limitations promote a proper purpose and whether they are rationally connected to that purpose and necessary. Also, the weight of the marginal social importance of the benefits must be heavier than the weight of the marginal social importance of preventing the harm. | >
> | Although this observation may reflect some of the underlying values of the constitutional right to privacy in Israel, it does not fully reflect the actual extent of the right's protection. For instance, despite the fact that the PPA regulates the holding of private databases by requiring registration of all databases and imposing on database owners various obligations, in fact, only a minor portion of all the databases in Israel are indeed registered (see 2014 Ministry of Justice Report [Hebrew]). In addition, Israeli security services are excluded from some of the obligations imposed by the PPA, including the rules concerning the use of databases. The public is not aware to how security services use the powers granted to them by law. It is impossible to know what type of information is delivered, how often, and how long the information is kept. Furthermore, unlike the surveillance being held outside Israeli borders, which is taken for granted, the public is not aware to the scope of inner-state surveillance and whether this activity includes also listening to Israeli citizens. I will not be surprised if the latter occurs in some degree, as some believe that Israel is exposed to security treats both from members of the Israeli-Arab population and from members of extreme right wing groups. | | | | |
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< | In this respect, the gap between the scope of the Israeli constitutional Dignity-based-right to privacy and its actual realization is in many ways a result of the Israeli social experience and the security threats and challenges which it faces. In a place where restaurants and public buses are under a serious terror threat, the infringement of the right to privacy by searching one's bugs for explosives would be more tolerable from a constitutional point of view. In this instance, the right to Human Dignity may support both sides. It would underpin both the right to privacy and the purposes for limiting it (the person’s physical and mental integrity). | >
> | With this respect, the gap between the scope of the Israeli constitutional Dignity-based-right to privacy and its actual realization is in many ways a result of the Israeli social experience and the security threats and challenges which it faces. In a place where restaurants and public buses are under a serious terror threat, the infringement of the right to privacy by searching one's bugs for explosives would be more tolerable from a constitutional point of view. When many perceive one-fifth of the population as a potential fifth column, based on the fact that they are members of a nation which is in an ongoing conflict with Israel, some degree of surveillance on Israeli citizens might be publicly tolerable as well. Yet, without underestimating the significant risks involved, the lack of public awareness concerning the scope of surveillance within the state's borders and the effectiveness of the judicial, legislative, and executive oversight over it, is ought to be changed. | | | |
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OriKivityFirstPaper 3 - 30 Apr 2015 - Main.EbenMoglen
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THE CONSTITUTIONAL RIGHT TO PRIVACY IN ISRAEL: DIGNITY VERSUS LIBERTY | | | | |
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The draft before us makes no reference to anything real, except the
buses, which are significantly only there to be hypothetically blown
up by terrorism. All the other nouns refer to intangible legal
concepts, or "transitional objects" like the "Israeli Supreme Court,"
which performs the function of mediating concepts, like "dignity" or
"mother-rights" or whatever other Yecce bullshit we are into this
week. Not a wire, not a chip, not an algorithm, a handset, a
platform, a data-mining outcome, not an anything. Whatever legal
thinking is—assuming for a moment that it exists or that we are
compelled from politeness to pretend it does—it can only be
strengthened by some integration into reality.
If I might make one suggestion about the revision of this draft,
then, it would be to have some idea to put in it that is about the
subject of our course. Not the constitutional theory we
occasionally dropped into just in order that there should not be a
wedding without musicians, but the more central matter of what we
are making of ourselves and who that is turning us into. Not what
the Yale professors thought about privacy at a symposium, but what
is happening out there in the actual, where in the instantaneity of
less than two generations, the human race is altering its
fundamental nature. Some contact with these realities was the point
of the course, and it would be valuable to have your thinking in
relation to what we were studying together.
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OriKivityFirstPaper 2 - 26 Mar 2015 - Main.OriKivity
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THE CONSTITUTIONAL RIGHT TO PRIVACY IN ISRAEL: DIGNITY VERSUS LIBERTY
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< | Most constitutional democracies recognize a right of privacy explicitly in their constitution. In many of the countries, privacy is not explicitly recognized in the constitution, such as the United States, Ireland and India, the courts have found constitutional protection to the right to privacy in other provisions. Different systems of constitutional interpretation will result in different scopes of the right to privacy. The boundaries and content of what is considered the private domain which ought to be protected from state (or private) intervention vary between political and social cultures. | >
> | Most constitutional democracies recognize a right of privacy explicitly in their constitution. In many of the countries privacy is not explicitly recognized in the constitution, such as the United States, Ireland and India, the courts have found constitutional protection to the right to privacy in other provisions. Different systems of constitutional interpretation will result in different scopes of the right to privacy. The boundaries and content of what is considered the private domain which ought to be protected from state (or private) intervention vary between political and social cultures. | | | | | |
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< | In "Three Concepts of Privacy", Robert Post distinguishes the contrast between privacy as an aspect of Human Dignity and privacy as an aspect of Liberty. Post argues that "Privacy as dignity safeguards the socialized aspects of the self; privacy as freedom safeguards the spontaneous, independent, and uniquely individual aspects of the self. […] Privacy as dignity seeks to eliminate differences by bringing all persons within the bounds of a single normalized community; privacy as freedom protects individual's autonomy by nullifying the reach of that community" (Post, 2095). In "The Two Western Cultures of Privacy: Dignity Versus Liberty", James Q. Whitman asserts that while continental privacy protections are a form of protection of a right to respect and personal dignity, the American right to privacy is the right to freedom from intrusions by the state, especially in one's own home. The prime enemy of privacy according to the continental conception is any actor which spared humiliation and danger our public dignity (Whitman, 1161). However, the prime danger from the American point of view, is that "the sanctity of [our] home[s]," will be breached by government actors (Whitman, 1162). Indeed, under the American paradigm "liberty protects the person from unwarranted government's intrusions into a dwelling or other private places" (Lawrence v. Texas, 539 U.S. 558 (2003)). | >
> | In "Three Concepts of Privacy", Robert Post distinguishes the contrast between privacy as an aspect of Human Dignity and privacy as an aspect of Liberty. Post argues that "Privacy as dignity safeguards the socialized aspects of the self; privacy as freedom safeguards the spontaneous, independent, and uniquely individual aspects of the self. […] Privacy as dignity seeks to eliminate differences by bringing all persons within the bounds of a single normalized community; privacy as freedom protects individual's autonomy by nullifying the reach of that community" (Post, p.2095). In "The Two Western Cultures of Privacy: Dignity Versus Liberty", James Q. Whitman asserts that while continental privacy protections are a form of protection of a right to respect and personal dignity, the American right to privacy is the right to freedom from intrusions by the state, especially in one's own home. The prime enemy of privacy according to the continental conception is any actor which spared humiliation and danger our public dignity (Whitman, p.1161). However, the prime danger from the American point of view, is that "the sanctity of [our] home[s]," will be breached by government actors (Whitman, p.1162). Indeed, under the American paradigm "liberty protects the person from unwarranted government's intrusions into a dwelling or other private places" (Lawrence v. Texas, 539 U.S. 558 (2003)). | | |
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< | A Liberty-based-right to privacy would be established on ideas of individual will and consent, while a Dignity-based-right to privacy rests on recognition of the person’s physical and mental integrity, his humanity, and his value as a person. The first insists that individuals should be allowed to define themselves. The second "depends upon intersubjective norms that define the forms of conduct that constitute respect between persons" (Post, 2092). Individuals may approve certain actions which would infringe their Dignity. A voluntary slavery might pose less Liberty concerns than Human Dignity ones. Our approval to publicly present our body after our death might not infringe the right to Liberty but in certain circumstances would violate the Dignity of the dead person. Nonetheless, in many cases both Human Dignity and Liberty would protect the same domain, due to their common concern about individual's autonomy. | >
> | A Liberty-based-right to privacy would be established on ideas of individual will and consent, while a Dignity-based-right to privacy rests on recognition of the person’s physical and mental integrity, his humanity, and his value as a person. The first insists that individuals should be allowed to define themselves. The second "depends upon intersubjective norms that define the forms of conduct that constitute respect between persons" (Post, p.2092). Individuals may approve certain actions which would infringe their Dignity. A voluntary slavery might pose less Liberty concerns than Human Dignity ones. Our approval to publicly present our body after our death might not infringe the right to Liberty but in certain circumstances would violate the Dignity of the dead person. Nonetheless, in many cases both Human Dignity and Liberty would protect the same domain, due to their common concern about individual's autonomy. | | | |
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OriKivityFirstPaper 1 - 06 Mar 2015 - Main.OriKivity
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THE CONSTITUTIONAL RIGHT TO PRIVACY IN ISRAEL: DIGNITY VERSUS LIBERTY
Most constitutional democracies recognize a right of privacy explicitly in their constitution. In many of the countries, privacy is not explicitly recognized in the constitution, such as the United States, Ireland and India, the courts have found constitutional protection to the right to privacy in other provisions. Different systems of constitutional interpretation will result in different scopes of the right to privacy. The boundaries and content of what is considered the private domain which ought to be protected from state (or private) intervention vary between political and social cultures.
The constitutional right to privacy may underpins different key values. Many believe that the connection between the values of Liberty and Human Dignity to the constitutional right of privacy is essential for understanding the right's meaning and scope. Liberty and Human Dignity are both core values which are considered to be the foundation of modern democratic societies. Liberty is the founding value of the American Revolution and it has an important role in the United States' constitutional scheme. Human Dignity has a long history. Originally, it was rooted in the theological concept of the human creation in the image of God. In the modern context, Human Dignity mainly function as an extension of the Kantian Enlightenment-era concepts. It became a constitutional right only in post-World War II constitutional democracies. This is the case in Germany, South Africa, Poland, and Israel, where human dignity is regarded to be an important constitutional right.
In "Three Concepts of Privacy", Robert Post distinguishes the contrast between privacy as an aspect of Human Dignity and privacy as an aspect of Liberty. Post argues that "Privacy as dignity safeguards the socialized aspects of the self; privacy as freedom safeguards the spontaneous, independent, and uniquely individual aspects of the self. […] Privacy as dignity seeks to eliminate differences by bringing all persons within the bounds of a single normalized community; privacy as freedom protects individual's autonomy by nullifying the reach of that community" (Post, 2095). In "The Two Western Cultures of Privacy: Dignity Versus Liberty", James Q. Whitman asserts that while continental privacy protections are a form of protection of a right to respect and personal dignity, the American right to privacy is the right to freedom from intrusions by the state, especially in one's own home. The prime enemy of privacy according to the continental conception is any actor which spared humiliation and danger our public dignity (Whitman, 1161). However, the prime danger from the American point of view, is that "the sanctity of [our] home[s]," will be breached by government actors (Whitman, 1162). Indeed, under the American paradigm "liberty protects the person from unwarranted government's intrusions into a dwelling or other private places" ( Lawrence v. Texas, 539 U.S. 558 (2003)).
A Liberty-based-right to privacy would be established on ideas of individual will and consent, while a Dignity-based-right to privacy rests on recognition of the person’s physical and mental integrity, his humanity, and his value as a person. The first insists that individuals should be allowed to define themselves. The second "depends upon intersubjective norms that define the forms of conduct that constitute respect between persons" (Post, 2092). Individuals may approve certain actions which would infringe their Dignity. A voluntary slavery might pose less Liberty concerns than Human Dignity ones. Our approval to publicly present our body after our death might not infringe the right to Liberty but in certain circumstances would violate the Dignity of the dead person. Nonetheless, in many cases both Human Dignity and Liberty would protect the same domain, due to their common concern about individual's autonomy.
The state of Israel was established as a collectivist and socialist society. Only from the seventies of the last century Israeli society started to shift towards an individualistic and liberal values. The enactment of the 1992 Israeli Basic Law: Human Dignity and Liberty initiated a new constitutional era in Israel, under which Human Dignity became the corner stone of the Israeli bill of rights. The Israeli Supreme Court treated Human Dignity as a “framework right” or a “mother-right” from which derivative rights may be generated and emphasized its important role in the Israeli constitutional schema. Section 7 of the Basic Law expressly protects the right to privacy of all persons. The Israeli Supreme Court has repeatedly pointed out that the constitutional right to privacy is closely related to Human Dignity. In this respect, the Israeli understanding and interpretation of the right to privacy is more similar to the continental paradigm than to the Anglo-American tradition.
However, although this observation may reflect the underline core value and content of the constitutional right to privacy in Israel, it does not fully reflect the actual extent of the right's protection. The extent of the right's protection prescribes the legal limitations on the exercise of the right within its scope. Limitations on constitutional rights may be justified if they satisfy constitutional scrutiny. Under Israeli Proportionality scrutiny, the question is whether the legal limitations promote a proper purpose and whether they are rationally connected to that purpose and necessary. Also, the weight of the marginal social importance of the benefits must be heavier than the weight of the marginal social importance of preventing the harm.
In this respect, the gap between the scope of the Israeli constitutional Dignity-based-right to privacy and its actual realization is in many ways a result of the Israeli social experience and the security threats and challenges which it faces. In a place where restaurants and public buses are under a serious terror threat, the infringement of the right to privacy by searching one's bugs for explosives would be more tolerable from a constitutional point of view. In this instance, the right to Human Dignity may support both sides. It would underpin both the right to privacy and the purposes for limiting it (the person’s physical and mental integrity).
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