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National security aims to protect a nation from internal and external factors threaten- ing the continued existence of the norms that are the fundament of today’s society. National security is an extremely flexible notion, however. It is difficult to assess whether something or someone is a threat to the national security. The interpretation of the concept may be different from society to society, culture to culture and may change throughout time.

Many means may be used to protect the national security. Physical, and data surveil- lance are among these. There are many examples available that show that these means can be effective. However, there are many aspects that need to be taken into account in using these means (e.g., accuracy of processed information, interpretation of the data, competence of intelligence services).

Decisions based on the processed data may have a great impact on individuals and eventually on society. Sufficient safeguards should be in place to ensure to the great- est extent possible that it is only national security that is protected, not another inter- est, and that the use of the means protecting national security are strictly limited to what is listed in the task to which the means were assigned.

12.2.1 Role of technology

A wide range of privacy enhancing technologies are available. Location technology does provide security and intelligence services with the means to track and trace indi- viduals at varying levels of accuracy. Especially hybrid equipment, using both cell- phone technology and navigation technology allow for increased positioning of mo- bile equipment.

However, since the availability of the location information is a prerequisite for using the functionality of the mobile device, it cannot be encrypted or otherwise withhold from intelligence or law enforcement agencies in the instance that these have a legal mandate to access the location data. Therefore, although these PETs may be suffi-

12.3 Balancing national security and privacy

This chapter provides the findings of the study of relevant national and international legislation and case law. The United Nations, OECD and European privacy regimes clarify that privacy is a fundamental right, but may be invaded by other rights that serve other (more absolute) objectives of general interest recognized by a society. The right to privacy is in most international treaties recognized as a fundamental human right. The right is, however, not absolute. National security interests can jus- tify a limitation to the right to privacy. This national security interest is acknowledged in all treaties as a legitimate purpose to interfere with one’s privacy. The specific cir- cumstances to interfere with the right to privacy depend on the specific case. An analysis of the European Convention of Human Rights, Convention 108, OECD principles, European Union Directives, judgments of the European Court of Human Rights resulted in six general principles that need to be satisfied to interfere with the right to privacy for purposes of national security (see also Westin 1967, p.370): Principle 1: Interference for national security purposes must have some basis in do- mestic law, law must be accessible to all, and the means of interference should be foreseeable for citizens.

Principle 2: A fair balance has to be struck between the demands of the general inter- est and the interest of the individual.

Principle 3: Interference should be proportionate to the legitimate aim pursued. Principle 4: Interference is only allowed if adequate and effective guarantees against abuse exist.

Principle 5: Guaranteed accuracy of the data for the purposes of use. Principle 6: Individual participation in the process whenever possible.

Adherence to these principles was sought in four case-studies: the Netherlands, Can- ada and Germany for national security interests and finally law enforcement interests in the Netherlands.

Balancing stages

In balancing national security and privacy several relevant balancing steps can be dis- tinguished. First the threat, its seriousness and its urgency need to be assessed. Fur- ther, from the available means, the most effective may be selected. Then, it needs to be assessed what the conditions need to be for using these means: what means may be used when, for how long, and what safeguards need to be respected, among oth- ers. If the selected means are telecommunications, the same questions will apply to the type of data to be used. The answers to these questions may vary from place to place, and from situation to situation.

Intelligence and security agencies in the cases have a bucket full of available means that may be utilized to address concerns of national security. The collection of in- formation is among the core businesses of these agencies. This may be accomplished through publicly accessible sources such as newspapers, internet, television, and other published materials. Also members of the public, other government agencies, and other intelligence agencies may be sources. An intelligence and security agency

of (electronic) equipment (e.g., wire-taps) and electronic surveillance of targeted per- sons or places (e.g., placing ‘bugs’). Only one of these means is information available from telecommunications. And location data is only one type of data available from telecommunications.

It is difficult to compare in a general way telecommunications with other available means with respect to privacy interferences and effectiveness. Likewise, the privacy impact of the use of telecommunication data is very context, time and type depend- ing. Therefore, it should be decided on a case-by-case basis whether telecommunica- tion data are the most effective means and which telecommunication data are the most effective data to address the threat. In this respect, the least detailed legislation (Canada) is assessed to be the balancing framework that most adequately will respect the totality of the circumstances which are key in determining the level of location privacy.

Provided the context-specific characteristics of both the effectiveness and the level of location privacy of telecommunication data, the decision-making process is key to arrive at a fair balance between privacy and national security. The requirements of proportionality and subsidiarity are similarly fulfilled in the case-studies. The longer the period of observation, the more intimate the place of observation, the higher the intensity or frequency of observation, the more accurate and timely the information, and the more possibilities the supportive means provide, the higher the chance that someone’s privacy will be interfered with. Use of most intruding means would typi- cally be reserved for most urgent threats.

However, for the final decision to use a special means interfering with the right to privacy, only the security and intelligence agency in the Netherlands can do this without involvement of an independent authority. Safeguards in the Netherlands are established in the overall pro-active tasks of the review commission, among others.

Effective remedy and adequate safeguards

An effective remedy should be considered as key to privacy protection. An effective remedy is generally considered to include:

- well developed procedures within the security and intelligence services in ar- riving at a decision to use special authorities;

- well developed procedures to execute the decision;

- involvement of independent authority in the decision to use special authori- ties (ex-ante);

- independent oversight (ex-post);

- decision powers to interfere in the operations of the security and intelligence service for the independent control mechanisms, and

- preferably with intern oversight by a privacy commissioner/ inspector. Each country has some kind of independent oversight or review. In Germany and Canada independent authorities are part of the decision-making process: their ap- proval is required to use the means. The Netherlands has chosen for a system in which the decision-making is the responsibility of the security and intelligence service

commission is in a permanent parliamentary commission. In the Netherlands and Canada, this is in independent review commissions. None of the review commissions can render legally binding decisions. Parliamentary oversight is found in Germany, Canada, and the Netherlands for national security.

Approval for using location data varies from country to country. In the Netherlands, no independent authority is involved in the decision to use special authorities by the intelligence and security agency. Only if the operations involve the content of com- munications, the Minister has to approve use of the measure. In Canada no distinc- tion is made in the law between any type of information. In Canada, the expectation of privacy in private areas, i.e., the home, is greater than in public areas. Although the Federal Court might be likely to easier accept or require lower standards for requests concerning solely identification data compared to the full range of available tele- communications data, this was not confirmed in this research. Depending on the to- tality of the circumstances of a case, a greater or lesser reasonable expectation of pri- vacy may be found. In Germany, the decision model is most detailed developed in the law. The independent G-10 commission needs to approve the surveillance of traffic data and location data of mobile devices, putting these at the same level as the content of communications.

Effectiveness of using location data of mobile devices

Location information of telecommunications is only one of the available means for national security. Location data as part of the traffic data of a cell-phone can be very useful in complementing other special means, especially in supporting the observa- tion means (see Van de Pol 2006, p.139). Real-time location data may help to prevent someone going somewhere, but only in combination with physical surveillance. In the future, this surveillance may be through under-the-skin-electronic-chips, or bracelets controlled at a distance.

Often less private information is more useful to national security objectives than lo- cation data. It is questionable how proportionate tracking someone is since it may re- sult in an almost complete picture of someone’s life, especially in combination with other information. Provided the limited additional information real-time location adds to the national security objective, it should be claimed and used to the mini- mum.

12.3.1 Other findings from the case-studies Money as privacy’s savior

Privacy is currently protected by economic arguments: telecom providers refuse to store the minimum of data no longer than necessary. Due to the cost of storing data, they do not keep records of standby data of a cellphone. In Jamaica, road centreline and parcel data maps are assessed to be crucial to 24/7 monitor the movements of persons on parole, but the national mapping agency refused to provide these to the private company contracted by government to monitor (Walker 2007).

This economic argument is a very fragile basis for the protection of privacy.

Transparency of law against privacy interests!?

The European Court of Human Rights’ foreseeability requirement requires that the domestic law must be sufficiently clear in its terms to give citizens an adequate indi- cation as to the circumstances in and conditions on which public authorities are em- powered to resort to any such secret measures. However, in this research it has been

cumstances (i.e., crimes) the more likely it is that these means are being used for these specified circumstances. Several interviewees independent from each other, both national and international, confirmed that increased transparency promotes the use of infringing means. Affirmation of this hypothesis would argue against the ECtHR requirements. Further research is required to test this hypothesis.

Reporting use and effect of available means

To assess the effectiveness of available means, qualitative or quantitative data on the use and effect of these means are a prerequisite. In Canada and Germany, general data on the number of phone taps placed by law enforcement per year are reported as a legal requirement and publicly available. In Canada these are also available for the security and intelligence agency. Unlike these countries, in the Netherlands the security sector, nor law enforcement is required to report these facts. Accordingly they, or the Minister cannot be held accountable for increases or decreases of the number of request for these data. Very recently (May 2008), the Minister of Justice revealed that on a daily basis 1681 tap orders are executed. This suggests that either a significant part of law enforcement is involved in the tapping business, or that a sig- nificant part of these taps is placed without being used. The latter situation would imply a disproportionate interference with the right to privacy. The reveal is likely to attract the attention of members of parliament which have now a basis to question the effectiveness of the used means, especially compared to other countries.

In all cases, no obligation exists to report on the number of requests for traffic data, or location data of mobile devices. Therefore, information on the use of these data is scant; their effectiveness remains unassessed.

Such a situation results in non-informed decisions in parliament that may shift the balance between privacy and national security significantly. Politicians should be able to take a balanced view on these matters that not only may impact individual citizens in the short term, but might undermine the democratic values underlying our democ- ratic society in the long run. They can only do this through informed decision mak- ing. Informed implies knowledge about the use and effect of current means, and the expected effect of proposed means.