Legal Commentary

Wiretapping and human rights

By Stewart Baker

Quick quiz: A legislature proposes strict new limits on wiretapping, including penalties for leaking the results of a criminal wiretap in advance of trial, essentially making such leaks a felony for most people and a misdemeanor for journalists.  Is this (a) good for human rights because it protects privacy and cuts down on prosecutorial abuses that prejudice defendants or (b) bad for human rights because journalists might be punished for abetting prosecutorial abuses?  The UN (or at least its special rapporteur for human rights) and the entire Italian press corps choose (b), opting for the institutional interests of the media over the protection of privacy.  Italy is probably one of the most wiretapped Western democracies already, but Italian efforts to curb wiretapping have been cast not as a privacy battle but as a Berlusconi effort to curb the investigative powers of anticorruption judges.

This isn?t the only country where the media have opposed privacy legislation.  Japanese media demanded special exemptions from their country?s privacy laws earlier in the decade.

What does this tell us?  That the media are at bottom hostile to privacy protection because it interferes with their business model?  That privacy legislation is likely to end up simply reinforcing the establishment, protecting government officials and others who already have power?  That concepts of what constitutes privacy are surprisingly dependent on cultural and even political context?  That US law, which has long punished those who leak wiretapped communications, isn?t a triumph for privacy but just another American abuse of human rights?  That the UN?s vision of human rights is less than 20?20?  (Ok, we didn?t need this story to tell us that.)

Full post as published by The Volokh Conspiracy on July 14, 2010 (boomark / email).