Right to Privacy Law & Legal Definition

The right to privacy is the right to be let alone, in the absence of some "reasonable" public
interest in a person's activities, like those of celebrities or participants in newsworthy events.
Invasion of the right to privacy can be the basis for a lawsuit for damages against the person or
entity violating the right.
The right to privacy is not mentioned in the Constitution, but the Supreme Court has interpreted
several of the amendments as creating this right. One of the amendments is the Fourth
Amendment, which stops the police and other government agents from searching us or our
property without "probable cause" to believe that we have committed a crime. Other
amendments protect our freedom to make certain decisions about our bodies and our private lives
without interference from the government. The due process clause of the 14th amendment
generally only protects privacy of family, marriage, motherhood, procreation, and child rearing.

Privacy is something cherished by almost all Americans. It is the right to live life without the
government prying into what we dohe right to be let alone. Privacy allows us to develop into
individuals with our own thoughts, beliefs, hopes, and dreams. It permits us to decide how to live
our lives in our own homes. Privacy allows adults to decide who to marry, whether to have
children, and how to raise a family. The right to privacy restricts how the government can
investigate our lives.
Surprisingly, the words "privacy" and "right to privacy" do not appear in the U.S. Constitution.
Instead, certain parts of the Constitution protect specific kinds of privacy. For example, the
freedoms of expression and religion in the First Amendment protect the right to have private
thoughts and ideas. The Fourth Amendment says the government may not arrest a person or
search his house without good reasons. The Fifth Amendment says a criminal defendant does not
have to testify against himself at trial. That means he can keep private any information about the
crime he is charged with committing.
These Amendments, however, do not say Americans have a general right to privacy. Where,
then, does the right of privacy come from? The Supreme Court developed it through decades of
interpreting the U.S. Constitution.
Developing the right of privacy
The first Americans to mention the right to privacy were Boston lawyers named Louis D.
Brandeis and Samuel D. Warren. In 1890, they published an article called "The Right to
Privacy." Brandeis and Warren said Americans needed protection from newspapers that invaded
privacy by exposing private lives to the public. As they do today, newspapers then often wrote
embarrassing or humiliating articles about people. Brandeis and Warren said Americans should
be allowed to sue newspapers to protect their privacy.
In 1916, Brandeis became a justice on the U.S. Supreme Court. Twelve years later in Olmstead
v. United States (1928), he wrote a famous dissenting opinion (which means he disagreed with
the Court's decision in the case). Justice Brandeis said the Constitution was written to protect
privacy to help Americans pursue happiness:
The makers of our Constitution ... sought to protect Americans in their beliefs, their thoughts,
their emotions and their sensations. They conferred, as against government, the right to be let
alonehe most comprehensive of the rights of man and the right most valued by civilized men.
Almost four more decades passed before the Supreme Court recognized a general right of
privacy. In between, some justices wrote opinions supporting such a right. In Public Utilities
Commission v. Pollak (1952), Justice William O. Douglas said "the right to be let alone is indeed
the beginning of all freedoms." Then in Poe v. Ulman (1961), Justice John Marshall Harlan II
referred to a Connecticut law that interfered with marriage as "an intolerable invasion of
privacy."
In Griswold v. Connecticut (1965), the Supreme Court finally recognized a right to privacy in the
U.S. Constitution. The case involved a Connecticut law that made it illegal for married couples
to use contraceptives, or birth control. (Contraceptives prevent a woman from getting pregnant
when she has sexual intercourse.) Nothing in the Constitution specifically says married couples
have a right to use birth control. The Court, however, said the law interfered with "the right of
privacy in marriage." In other words, privacy for married couples in America allows them to
decide whether to use contraceptive devices.
Since Griswold, the Court has had to decide what the right of privacy protects. The issue arises
in cases involving marriage, sexual reproduction, abortion, family life, the right to die, and right
to have information kept private. Sometimes the Supreme Court recognizes the right to privacy
in these cases, but other times it does not.
Marriage
As Griswold made clear, marriage is one of the relationships protected by the right of privacy.
That is because families are an important part of the American way of life. People growing up
often dream of the day when they will have their own family. Settling down with a family is one
way Americans pursue happiness in life.
Many privacy cases, then, have been about the family. Two years after Griswold, for example,
the Supreme Court decided Loving v. Virginia (1967). Loving involved a Virginia law that made
it illegal for people of different races to marry each other. The Lovings were a white man and
black woman who were convicted under this law. The Lovings appealed their convictions and
won. The Supreme Court said marriage is one of the "basic civil rights of man." Laws that
prevent people of different races from marrying each other violate the right to privacy and are
unconstitutional.
Other marriage cases have included Zablocki v. Redhail (1978) and Boddie v. Connecticut
(1971). In Zablocki, the Supreme Court said laws that make it financially difficult for poor
people to get married violate the right to privacy. Logically, the freedom to marry also must
include the freedom to end a marriage. In Boddie, then, the Court struck down laws that make it
financially difficult for poor people to get a divorce.
Sexual reproduction
As privacy protects marriage, it also protects the decision whether or not to have children. As
described above, the Court in Griswold said the government may not prevent married couples
from using contraceptive devices. In Eisenstadt v. Baird (1972), the Court said unmarried
couples also have a privacy right to use contraceptives. Then in Carey v. Population Services
International (1977), the Court said the government may not prevent people under sixteen years
old from using birth control. Taken together, these decisions protect every American's right to
determine whether or not to have children.
Some people believe these decisions also protect a couple's right to engage in sexual relations,
whether or not they are trying to have children. The question soon arose whether the right to
privacy protects homosexual relations. (Homosexuals are people who have sexual relations with
members of the same sex.) Many states have laws that make homosexual relations a crime.
In Bowers v. Hardwick (1986), the U.S. Supreme Court said laws that make homosexual
relations a crime do not violate the right of privacy. The Court said the right of privacy protects
traditional relationships in America, which means marriage, family, and sexual reproduction by a
man and a woman. Homosexuals, then, are still struggling to get the Supreme Court to recognize
their right to privacy.
Abortion
If privacy protects the right to avoid getting pregnant by using birth control, does it protect a
right to end pregnancy by having an abortion? This is one of the most fiercely debated questions
in the United States. Abortion rights activists say women, whose bodies are the ones affected by
pregnancy, have a constitutional right to have an abortion. They say the medical risks and long
term consequences of having a baby give women this right. Opponents of abortion say an unborn
fetus is a living person with a right to life. For them, abortion is murder.
In the landmark decision of Roe v. Wade (1973), the Supreme Court said privacy protects the
right to have an abortion until the fetus, the unborn, can live outside the mother's womb. At that
point, the state can protect the unborn's life by preventing abortion unless it is necessary to save
the mother's life. After Roe, people continue to argue, sometimes violently, about whether
abortion should be legal.
Family life
After people marry and have children, they spend many years raising their families, trying to
make them as healthy, safe, and happy as possible. The right to privacy allows people to make
many family decisions. For example, in Pierce v. Society of Sisters (1925), the Supreme Court
said parents do not have to send their children to public schools. As long as parents make sure
their children get a good education, they can send their children to public or private schools, or
teach them at home.
Another privacy case about family life was Moore v. City of East Cleveland (1977). East
Cleveland had a law that required people living in a house to belong to one family. The law
defined a family as a mother and father and their parents and children. Cleveland enforced the
law by convicting Inez Moore, a woman who lived in a house with her unmarried son and two
grandchildren, who were cousins. Moore said the law violated her right of privacy and the
Supreme Court agreed. The Court said Americans are allowed to live with family members
outside the traditional "nuclear" family of mother, father, and children.
The right to die
The right of privacy lets Americans decide how to live. Does it also protect a right to die? If a
person has only six painful months to live while dying from cancer, does she have a right to end
her life to avoid the pain. Can a family shut off the life support system for someone who will be
in a coma for the rest of her life?
The last question was the issue in Cruzan v. Director, Missouri Department of Health (1990).
After an automobile accident in 1983, Nancy Cruzan was alive but unable to move, speak, or
communicateith almost no hope of recovery. Believing Nancy would not want to live like that,
her family decided to shut off her life support system. The State of Missouri would not allow it,
so Nancy's family took the case to the U.S. Supreme Court.
Although the Supreme Court decided in Missouri's favor, it also said Americans have a right to
refuse unwanted medical treatment, even if it will result in death. In other words, the right of
privacy includes a right to die. Nancy's family was allowed to remove the life support system
only after coming up with more evidence that Nancy would not want to live that way.
The right to die came up again in Washington v. Glucksberg (1997). Washington, like most
states, had a law making it illegal to help someone end her life. A group of physicians and
terminally ill patients filed a lawsuit saying the law interfered with the right to die. They argued
that people who are dying from painful illnesses have a right to end their lives with dignity rather
than suffer until death. The Supreme Court disagreed. It said the right to die in Cruzan was a
right to refuse medical treatment. The right of privacy does not include a right to be killed with
medical assistance.
Private information
The end of the twentieth century has been called the beginning of the Information Age.
Computers store vast amounts of information about people. Americans naturally are concerned
about private information becoming available to the public. They also fear invasion of privacy by
governmental agents trying to investigate criminal activity. At the same time, the government
needs to investigate and catch criminals to bring them to justice.
To a certain degree, Americans are protected by privacy laws. The federal Omnibus Crime
Control and Safe Streets Act of 1968 regulates the government's use of wiretapping to listen to
telephone conversations. The Privacy Protection Act of 1974 and the Freedom of Information
Act require the government to be fair when it collects, uses, and discloses private information.
Sometimes, however, people file lawsuits saying the government has gone too far with an
investigation.
That was the case in Watkins v. United States (1957). In the 1950s, Congress was investigating
communist activity in the United States. Communists were members of a political party that
wanted to overthrow the federal government. John T. Watkins, a labor union official, was called
before Congress to testify about known communists. Watkins, however, refused to identify
people who used to be, but no longer were, members of the Communist party. Watkins was
convicted of contempt of Congress for refusing to answer such questions, but the Supreme Court
reversed his conviction. The Court said Congress does not have unlimited power to investigate
the private lives of American citizens.
Right to privacy cases came into the Information Age in Whalen v. Roe (1977). New York State
had a computer system that stored the names and addresses of patients who received prescription
medicines and drugs. The system was designed to control the illegal use of such drugs. Patients
filed a lawsuit saying the computer system violated their right to privacy. The patients were
afraid they would be called drug addicts if the public got access to the prescription information.
The U.S. Supreme Court said the computer system did not violate the right of privacy because
the law required New York to keep the prescription information secret. As computers become
more powerful and store ever increasing amounts of information, Americans need to work harder
to protect their right to privacy.
Suggestions for further reading
Dolan, Edward F. Your Privacy: Protecting It in a Nosy World. New York: Cobblehill Books,
1995.
Hoobler, Dorothy, and Thomas Hoobler. Your Right to Privacy. New York: Franklin Watts,
1986.
Wawrose, Susan C. Griswold v. Connecticut: Contraception and the Right of Privacy. New
York: Franklin Watts, 1996.
Source: Supreme Court Drama, 2006 Gale Cengage. All Rights Reserved.
Privacy and the Law: How the Supreme
Court Defines a Controversial Right
Introduction
Ever since Edward Snowden leaked classified details about the National Security
Administrations surveillance programs, Americans have grown increasingly concerned about
government infringement on their right to privacy. The concept of a constitutional right to
privacy is nothing new, but its boundaries are often nebulous.
The Supreme Court has been weighing the limits of privacy rights since 1965, when it issued a
landmark ruling in Griswold v. Connecticut, which held that Connecticuts ban on the use of
contraceptives violated the right to marital privacy. In his dissenting opinion, Justice Hugo Black
noted that privacy is a broad, abstract and ambiguous concept. But despite Blacks concerns,
privacy has since become a fundamental protection in our Constitution that many Americans
treasure. Just eight years later, in one of the courts most contentious and important cases, Justice
Blackmun argued in Roe v. Wade that the 14
th
Amendment right to privacy protected a womans
right to have an abortion.
Since the Griswold case, the Court has regularly taken up new privacy issues as technology
evolves. In some cases, the Court has chipped away at the zone of privacy, giving the green light
to schools that make choir students consent to drug tests. In others they have codified new
privacy rights, such as forcing police to obtain a warrant before allowing drug-sniffing dogs to
track down marijuana growers in their homes.

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a-controversial-right/#ixzz2dXR3eluF


Supreme Court Decisions on LibertyPrivacyAs Justice Hugo Black wrote in the Griswold vs.
Connecticut opinion, "'Privacy' is a broad,abstract and ambiguous concept." There is no one
sense of privacy which can be extracted
from the various Court decisions which have touched upon it. The mere act of labeling
something "private" and contrasting it with "public" implies that we are dealing with something
which should be removed from government interference.
According to those who emphasize individual autonomy and civil liberties, the existence of a
realm of both private property and private conduct should, as much as possible, be left alone by
the government. It is this realm which serves to facilitate the moral, personal and intellectual
development of each individual, without which a functioning democracy is not possible.
In the cases listed below, you will learn more about how the United States Supreme Court has
developed the concept of "privacy" for people in America.
Weems v. United States (1910)
In a case from the Philippines, the Supreme Court finds that the definition of "cruel and unusual
punishment" is not limited to what the authors of the Constitution understood under that concept.
Meyer v. Nebraska (1923)
A case ruling that parents may decide for themselves if and when their children may learn a
foreign language, based upon a fundamental liberty interest individuals have in the family unit.
Pierce v. Society of Sisters (1925)
A case deciding that parents may not be forced to send their children to public rather than private
schools, based on the idea that, once again, parents have a fundamental liberty in deciding what
happens to their children.
Olmstead v. United States (1928)
The court decides that wire tapping is legal, no matter what the reason or motivation, because it
is not expressly prohibited in the Constitution. Justice Brandeis' dissent, however, lays the
groundwork for future understandings of privacy.
Skinner v. Oklahoma (1942)
An Oklahoma law providing for the sterilization of people found to be "habitual criminals" is
struck down, based on idea that all people have a fundamental right to make their own choices
about marriage and procreation.
Tileston v. Ullman (1943) & Poe v. Ullman (1961)
The Court refuses to hear a case on Connecticut laws prohibiting the sale of contraceptives
because no one can demonstrate they have been harmed. Harlan's dissent in Poe, however,
explains why the case should be reviewed and why fundamental privacy interests are at stake.
Griswold v. Connecticut (1965)
Connecticut's laws against distribution of contraceptives and contraceptive information to
married couples are struck down, with the Court relying on earlier precedent involving the rights
of people to make decisions about their families and procreation as a legitimate sphere of
privacy.
Loving v. Virginia (1967)
Virginia law against interracial marriages is struck down, with the Court once again declaring
that marriage is a "fundamental civil right" and that decisions in this arena are not those with
which the State can interefere unless they have good cause.
Eisenstadt v. Baird (1972)
The right of people to have and know about contraceptives is expanded to unmarried couples,
because the right of people to make such decisions exists due not simply to the nature of the
marriage relationship. Instead, it is also due to the fact that it is individuals making these
decisions, and as such the government has no business making it for them, regardless of their
marital status.
Roe v. Wade (1972)
The landmark decision which established that women have a basic right to have an abortion, this
was based in many ways upon the earlier decisions above. Through the above cases, the Supreme
Court developed the idea that the Constitution protects a person's to privacy, particularly when it
comes to matters involving children and procreation.
Colautti v. Franklin (1979)
Should doctors be required to try to save the life of a possibly viable fetus when performing an
abortion? A Pennsylvania law created such a requirement, but the Supreme Court ruled that the
law was unconstitutional. Find out why...
Williams v. Pryor (2000)
The 11th Circuit Court ruled that the Alabama legislature was within its rights to ban the sale of
"sex toys," and that people do not necessarily have any right to buy them.
Pottawatomie v. Earls (2001)
How much latitude does a public school have in restricting a student's rights? Can schools force
all students to submit to random drug testing merely as a condition of attendance? Can they force
all students who participate in activities like band or soccer to submit to random drug testing?
Surveillance policies
Lawful access powers of government agencies
The Bangladesh Telecommunications (Amendment) Act 2006 law allows intelligence and law
enforcement agencies to monitor private communications with the permission of the chief
executive of the Ministry of Home Affairs, under section 97A, entitled "Special provision for the
security of state or public order."
In 2008 the government established a national monitoring centre made up of representatives
from law enforcement and intelligence agencies to monitor and coordinate phone taps. Media
and human rights groups complained that nonetheless the government continued to tap phones
illegally. Police rarely obtained warrants as required, and officers violating these procedures
were not punished. Human rights organisations alleged that the special branch of the police, the
National Security Intelligence, and the Directorate of Intelligence Forces (DGFI) employed
informers to conduct surveillance and report on citizens perceived to be critical of the
government.
The security agencies already have the power to gain access to personal information held by
individuals and organizations. Police investigators are required to obtain court permission to
seize materials for accessing personal information, though there are reports that instead they use
threats, intimidation, and coercion to bully the officials responsible for protecting personal
information into disclosing the data they want without formal permission.
In addition, the two security agencies, the Rapid Action Battalion (RAB) and the DGFI have
been given ancillary national security and counter-terrorism powers. The Amended
Telecommunication Act 2006 amended the Bangladesh Telecommunication Act 2001 to
establish the Bangladesh Computer Security Incident Response Team (BD-CSIRT) (set up in
January 2012) and to mandate the use of wiretapping and Internet surveillance in cases of threats
to state security, such as counter-terrorism, external threats, and high-profile crimes. There is no
transparency in the investigation process, especially with respect to obtaining personal
information. The security agencies are accountable only to the prime minster's office.
In the past several years, foreign countries have sought the background information of those
suspected of belonging to Jihads, militant leaders, and wanted criminals who had taken refuge or
were residing in Bangladesh. The police arrested and unofficially deported them, as Bangladesh
does not have extradition treaties with most countries.
Intelligence and surveillance oversight
There are three main security agencies in Bangladesh: the Rapid Action Battalion, the
Directorate of Intelligence Forces, and the police's National Security Intelligence (NSI).
The security agencies are accountable only to the prime minister's office. Civil society leaders
have demanded the formation of an oversight committee that will include elected representatives
in order to ensure accountability.
Although some officers have been punished for disciplinary infractions, none has been blamed
for human rights violations. However, Human Rights Watch and Amnesty International have
urged Bangladesh to probe RAB's extra-judicial killings, abduction, torture, and arbitrary
detention.1 The government has refused to take action and instead has defended the RAB.
Immigration and privacy
As in many countries, the immigration authorities seek regular information from immigrants,
foreigners, and Bangladeshi nationals, both residents and non-residents.
Registration is required within seven days of arrival for all foreigners, including immigrants
holding visas valid for a period exceeding 90 days. Every foreigner entering Bangladesh is
required to present in person to the appropriate Registration Officer to report their arrival; they
must also register with the local police station where they are staying. Application for
registration may also be made online.
All nationals and dual citizens are issued with a voter ID card and may apply for passports to
travel abroad. The country has yet to begin biometric registration.
With the exception of a few countries' nationals,2 foreigners arriving in Bangladesh must apply
in advance for a visa to enter the country.
Most of the data sought from foreigners and immigrants are not held securely, as they are kept in
the form of handwritten forms and applications, and are not stored in secure
locations. Previously, the authorities requested health information, but this practice ceased
several years ago when human rights issues were raised by journalists.
Computerized information collected at airport or immigration registration offices is stored on
CDs, which are also vulnerable to theft and inappropriate inventory practices.
The border authorities claim some right to search the contents of computers and devices of those
belonging to suspects arriving at border crossings and airports.
Passenger Name Records
The Immigration and Customs departments are responsible for security scanning of travellers.
Border Guards of Bangladesh (BGB) are responsible for border security, but do not conduct
body searches or check luggage. Passengers are asked to walk through metal detectors and
luggage is checked by customs officials. Male and female passengers are checked by same-sex
officers. For checking, women are taken into a makeshift enclosure, while male passengers are
publicly body-searched with handheld detectors.
Passengers name records are held by the immigration office and shared with intelligence agents
in the arrival lounge, though the nature of this processing remains unclear.
Profiling/data mining
There is no rule against racial profiling or other profiling, although the Constitution prohibits
discrimination and promotes equality before the law.
DNA
The National Forensic DNA Profiling Laboratory (NFDPL) is the country's first ever-forensic
DNA profiling laboratory. It was established with funds and technical support from the Danish
government at Dhaka Medical College in January 2006 by the government of Bangladesh under
the auspices of the Multi-Sectoral Programme on Violence Against Women, run by the Ministry
of Women's and Children's Affairs.
The laboratory provides services to the various investigative agencies to investigate violent
crimes. DNA analysis can also help solve disputes arising over issues like paternity,
immigration, or inheritance, and determine the identity of missing children, disaster victims, or
mutilated bodies.
The DNA lab has been extended with five additional laboratories at state-run medical college
hospitals in Rajshahi, Chittagong, Sylhet, Barisal, and Khulna. These laboratories accept cases
from peripheral regions and send collected samples to the National Forensic DNA Profiling
Laboratory for analysis after preliminary screening.
As of July 2011, the National DNA Laboratory has carried out DNA analysis for 20 cases (11
paternity, six rape and three murder) and 62 DNA samples.
The National DNA Laboratory has no clear privacy policy. However, so far as is known, the lab
has not shared any information with security agencies.
Communications surveillance and data retention
The Bangladesh Telecommunication Regulatory Commission (BTRC) is authorised to routinely
collect communications information, both traffic data and content, in order to monitor illegal
activities.
BTRC is an independent commission established under the Bangladesh Telecommunications Act
2001 (Act no. 18 of 2001), published by the Parliament in the Bangladesh Gazette. BTRC began
functioning on January 31, 2002.
BTRC envisages facilitating affordable telecommunications services of acceptable quality for all,
regardless of location. The commission issues and renews licenses and monitors providers on a
regular basis. Violators are strictly penalised and threatened with legal action and the revocation
of their licenses. The affected operators include:
The nationwide telecommunication transmission network;
Broadband wireless access service providers;
International gateway service providers;
Interconnection exchange service providers;
International internet gateway service providers;
Mobile phone operators;
PSTN operators;
VSAT operators;
Internet service providers;
Call centres; and
The optical fiber telecommunication transmission network.
In 2007, BTRC collected names, addresses, logins, and usage statistics from all ISPs in order to
profile the country's more than 450,000 Internet subscribers. BTRC ordered ISPs to collect
complete information regarding customers' exact location, warning that failure to comply might
result in the ISP's closure.
What BTRC does with the traffic data it acquires from service providers is unknown.
Visual surveillance
CCTV is widely used to monitor airports, traffic, private offices, warehouses, and other areas.
Law enforcement agencies use CCTV temporarily during religious and cultural festivals and also
during public political gatherings under the pretext of ensuring the safety and security of those
who are attending the events.
There is no rule, law, or code of practice governing visual surveillance, but it is not a common
practice. However, when the former military dictator General H.M. Ershad was in prison (1990-
1997), CCTV was used to monitor him after there were several complaints that he was violating
prison codes.
Bangladesh does not currently use advanced techniques such as facial recognition or automated
vehicle number plate recognition.
A woman found a closed-circuit TV camera in her changing room in a spa at a beauty parlour in
September 2011. In October 2011 the High Court ordered the government to take out all close-
circuit TV cameras from beauty parlours on a writ petition filed by Bangladesh Human Rights
Foundation chief executive Elina Khan.3
Restrictions on Internet use
Although individuals and groups can generally engage in the peaceful expression of views via
the Internet, local human rights organizations report continuing government monitoring of
Internet communications.
All the Internet cafes have rules users must comply with in order to use the facilities. These rules
are decided by the Cybercafe Owners Association of Bangladesh (COAB). Members of the
COAB are required to abide by these rules, which include maintaining customer privacy and
limiting use by school students. They are also urged to cooperate fully with law enforcement
agencies. They are also required to collect identifying information on all users.4
Many of the suspects arrested for cybercrimes are apprehended as a result of their activities in
cybercafes. Cybercafe owners are accordingly extra-vigilant about new customers and are known
to monitor anyone who looks suspicious.
Outside of cybercafes, there are no restrictions on Internet users. No one has to register or seek
permission to open an email account, either online or via an ISP. Similarly, there are no
additional restrictions on using social networks such as Facebook, YouTube, Twitter, or
blogging sites.
In July and October 2011, bloggers were briefly detained, though not arrested, for uploading
articles, critical comments, and photos during protests against the Bangladeshi government's deal
with US energy giant ConocoPhillips allowing deep sea gas exploration.5 The government was
unhappy about the bloggers' activities. But as these did not fall into the category of blasphemy
and they couldn't be accused of cybercrime, the bloggers were released on condition that they
would act more responsibly. However, they were coerced into disclosing the names and IDs of
other bloggers.
Cyber-security
The main types of cybercrime cases pursued in Bangladesh include: malicious mail to foreign
diplomatic missions and other VIPs; pornography; use of email for illegal activities; use of the
Internet to transmit false and malicious information; use of the Internet for prostitution; and use
of the Internet for trafficking in women and children.
There are mounting concerns about the risk of cybercrime due in part to the gradual increasing
dependence on and extensive use of computer and information technology by financial
institutions such as banks, insurance companies, and other non-government organisations.
Computers have been used as tools for crimes like making forged certificates and documents for
a number of years in Bangladesh, though incidents targeting computers or computer systems are
very rare.
There have been no allegations from Internet users or privacy and media rights groups that
government agencies have introduced viruses or conducted hacking in a bid to gain access to
personal information. Similarly, there are no allegations that the government has deliberately
crashed any network. Some believe that the lack of allegations is because the government really
doesn't have the technical know-how to conduct such forms of surveillance.
Footnotes
1. See 'Bangladesh: Broken Promises From Government to Halt RAB Killings', Human Rights
Watch, May 10, 2011; and 'Extra-judicial killing: Strong Police Complaints Commission needed',
Diya Nag, Daily Star, June 22, 2012.
2. Exemptions apply to nationals of Barbados, Bhutan, Botswana, Burkina Faso, Fiji, Gabon,
Gambia, Ghana, Grenada, Guinea, Guinea-Bissau, Jamaica, Lesotho, Malawi, Seychelles,
Swaziland, Western Samoa and Zambia.
3. 'HC order to remove CCTV from parlours', The Independent, October 11, 2011.
4. For the collection requirements, see http://www.btrc.gov.bd/index.php/industry-
focus/telecom-sectors/cyber-cafe
5. Bangladesh: Bloggers Arrested While Protesting Against Energy Deal
http://globalvoicesonline.org/2011/07/03/bangladesh-bloggers-arrested-wh...

Legal framework
Constitutional privacy protections
The right to privacy is still in a nascent stage in Bangladesh and swimming in a grey area of
constitutional protection. In several places, the constitution addresses the issue, though not in
unequivocal terms and not covering all aspects of privacy:
Article 11, human dignity: "The Republic shall be a democracy in which fundamental human
rights and freedoms and respect for the dignity and worth of the human person shall be
guaranteed."
Article 43, privacy of home and correspondence: "Every citizen shall have the right, subject to
any reasonable restrictions imposed by law in the interests of the security of the State, public
order, public morality or public health, to be secured in his home against entry, search and
seizure; and to the privacy of his correspondence and other means of communication."
Communications surveillance is conducted by the government through a national monitoring
centre run by officials of the intelligence agencies, under the aegis of the home ministry. In 2006,
the High Court heard a writ petition filed by the New Age editor, Mr. Nurul Kabir, and the
treasurer of the human rights coalition Odhikar, Ms. Tasneem Siddiqui. In response, on May 18,
2006, a High Court bench of Justices M Awlad Ali and Zinat Ara issued a ruling requiring the
government to explain why the Telecommunications (Amendment) Act 2006, enacted on
February 16, 2006 and making provisions for telephone tapping, should not be declared
unconstitutional. The government and the Bangladesh Telecommunication Regulatory
Commission (BTRC) were also asked to explain the legality of the action taken by the
commission in issuing the guidelines of March 16, 2006, which amended that law and imposed
new licensing conditions on telephone operators. This challenge is still pending in the High
Court.
Statutory privacy protections
The Information and Communication Technology Act, passed by the Bangladeshi Parliament in
2006, aimed to enhance the use of information communication technology (ICT) across all of
Bangladeshi society. The Act touches on the issue of privacy in sections 78 and 79, which
approximate section 72 of the Indian Information Technology Act, 2000.1
The Bangladesh Telecommunication Regulatory Commission has been set up under the Home
Ministry to coordinate the tapping and monitoring of phone calls. The Commission has been
authorized to record any calls it deems necessary.2
Three private international gateways, six interconnection exchanges, and one international
Internet gateway recently began operation under the Commission's international long distance
telecommunications system policy.
According to this policy:
Interconnection exchanges and international gateways, network access service providers
(mobile operators), and Internet telephony and VSAT hub operators will provide the
Commission with the connections, equipment, instruments, and software needed for online and
off-line monitoring.
Operators must provide access, including the necessary equipment and software, to the law
enforcement agency for "lawful interception" as provided for in the Bangladesh
Telecommuniations Act 2001.
Telephony operators must also provide records of call details and any other monitoring facilities
of voice and/or data calls, for both online and off-line monitoring by the Commission. The
commission may set up a monitoring centre at the submarine cable landing stations, if required.
Though the government publishes a standard privacy policy, it is feared that businesses, private
companies, educational institutions, security agencies, and other departments do not adequately
protect the information they collect and collate. There is no guarantee that private information
provided in the process of applying or registering for passports, voter IDs, driver's licences, bank
accounts, credit cards, and store cards is protected by adequate safeguards.
For example, the Bangladeshi government generally and the Prime Minister's Office (PMO)
specifically states that it "respects privacy and is committed to protect personal information
that you share with us [government]". However, the government's official web site3 does not
appear to meet these standards. For example, the website states that data provided by users on the
site may be shared with other government agencies and departments as necessary.
National ICT policy
In 2006 the Parliament of Bangladesh enacted the Information and Communication Technology
Act (ICTA 2006).4 The ICTA does not define cyber law. However, the Act does contain relevant
provisions that create the legal infrastructure for e-commerce and set out sanctions intended to
curb cybercrime in Bangladesh. The Act enables:
Legal recognition of electronic transactions;
Legal recognition of digital signatures;
Electronic contracts;
E-commerce and electronic forms;
Electronic publication of the official gazette;
Prevention of computer crime, forged electronic records, intentional alteration of electronic
records, and falsification of e-commerce and electronic transactions; and
Other responses to crimes relating to information and communications technology.
The Bangladeshi government is considering enacting a law specifically to curb cybercrimes and
pornography in the country. On 2 January 2012 the government approved a draft Pornography
Control Act 2011 that provides for a maximum of 10 years imprisonment or Tk 5 lakh fine or
both for pornography-related offences.
On the other hand, the Information and Communication Technology Act 2006 stipulates "a
maximum punishment of up to 10 years of imprisonment or a maximum fine of Tk 10 million, or
both" for cybercrime.
Some of the identified cybercrimes are:

(i) Hacking or unauthorized entry into information systems;
(ii) Distributing viruses;
(iii) Publishing or distributing obscene content in electronic form;
(iv) Tampering with electronic documents required to be kept under the law;
(v) Fraud using electronic documents;
(vi) Violation of privacy rights such as stalking;
(vii) Violation of copyright, trademarks or patents;
(viii) Defamation through email;
(ix) Sending out threats through email.
The list can be expanded to include additional types of activities.
Cyber tribunal
Under section 68 of the ICTA 2006, the government must establish one or more cyber tribunals
to ensure the speedy and effective disposal of cases under the Act, the tribunal should try only
the offences under the Act and the government can determine the local jurisdiction of the
tribunal. The government must appoint a Sessions Judge or Additional Sessions Judge in
consultation with the Supreme Court.
The cyber tribunal takes cases for trial:

a) upon the report of a police officer not below the rank of sub-inspector; or
b) upon a complaint made by a controller appointed under the Act or by any other person
authorized by the controller.
The cyber tribunal's trial procedure follows chapter 23 of Criminal Procedure Code, 1893 (the
trial procedure for the Court of Sessions). If the accused absconds, the tribunal can try the case in
absentia. In this case, the tribunal has to publish an order in two Bangladeshi newspapers
notifying the accused to appear on a specified date. The cyber tribunal applies the provisions of
the Criminal Procedure Code and has the same power as a Sessions Court would have in its
original jurisdiction. The public prosecutor conducts the case on behalf of the government.
The tribunal must conclude the trial within six months from the date of framing charges. This
period may be extended for three months. The tribunal must pronounce its judgment within ten
days after the conclusion of trial; the judgment may be deferred for ten days.
Cyber appellate tribunal
The ICTA 2006 mandates that the government establish one or more appellate tribunals. The
appellate tribunal is to be made up of one chair and two members appointed by the government.
The chair must be a former or current judge of the Supreme Court or be eligible to be appointed
as a judge of the Supreme Court. One of the two tribunal members must be a retired District
Judge or employed in the judicial service and the other must be an experienced and skilled
person in information and communication technology. They will be appointed for three to five
years.
Under the ICTA 2006, the appellate cyber tribunal will have no original jurisdiction, and will
hear and dispose only of appeals from the order and judgment of the cyber tribunal and, in
appropriate cases, the Sessions Court. The appellate tribunal's decision is final, and it has the
power to alter, amend, and annul the order and judgment of the cyber tribunal. The appellate
tribunal must follow the appellate procedure of the High Court Division of the Supreme Court.
Until the appellate cyber tribunal is established, appeals may be heard by the High Court
Division.
Supervisory authority for privacy laws and complaints
Bangladesh has no watchdog to whom citizens can bring complaints if the authorities infringe
their privacy rights. Citizens may seek bring an action in court, but are often deterred from doing
so because of concerns regarding the politicisation of the judiciary. For example, under the last
caretaker government a former Minister's interrogation was taped by law enforcement agencies
and was then made public. The Minister, Abdul Jalil did not take the matter to court, as he
believed the court was backed by and supportive of the government.
Therefore, citizens whose rights to privacy have been compromised by the state, private
companies, or an influential individual, have no effective avenues of redress.
Outstanding civil society advocacy and other work
Civil society and human rights groups have highlighted that the failure to protect personal
privacy is a violation of human rights issues as defined in Article 43 of the Constitution. These
groups, along with media freedom activists and non-profit organizations, have also called for
reforms and demanded that the government bring about changes in the law to ensure the right to
privacy.
The media advocacy networks have strategically engaged with the government in order to draft a
new law to support the Right to Information (RTI) and freedom of expression provisions laid
down in the constitution. Their goals are to:
Form an independent Privacy Commission;
Amend the Telecommunications Act 2006 to protect the right to personal privacy;
Develop information technology for easy access by the poor.
It is understood that the enactment of RTI coupled with the abolition of the antiquated State
Secrecy Act 1923 has opened doors for influencing the government to reform privacy laws and
policy. The Secrecy Act superseded all democratic norms and principles.
Freedom of information laws
On October 21, 2008 the caretaker government of Bangladesh published in the Bangladesh
Gazette the Right to Information Ordinance (No. 50 of 2008), based loosely on the Indian Right
to Information Act 2005. The Ordinance was passed by the government elected in 2008 in the
first session of this parliament on March 29, 2009.5
Footnotes
1. C.f. Right to privacy: How far protected? S. M. Masum Billah, The Daily Star, October 31, 2009
http://www.thedailystar.net/law/2009/10/05/monitor.htm
2. Govt set to monitor phone calls despite writ pending with High Court, Taib Ahmed, NewAge,
August 27, 2008 http://struggleforliberty.wordpress.com/2008/08/29/govt-set-to-monitor-p...
3. If you send us an electronic mail message with a question or comment that
contains personally identifying information, or fill out a form that e-mails us information, we
will use this personally identifying information only to respond to your request. We may redirect
your message to another government agency or person who is in a better position to respond to
your query or comment. All e-mail messages received contain the e-mail addresses of persons
who voluntarily communicated with or requested information from us. Your e-mail addresses
are not sold, leased or shared with any non-governmental or commercial entities without your
consent. When a user has given us their e-mail address for purposes of communicating with or
requesting information from us, that communication becomes part of the public record and may
be subject to public inspection and copying if not protected by law. (emphasis added)
Information submitted via e-mail or web forms may be at risk of being intercepted, read or
modified. You are advised not to pass on any personal and confidential information such as
security passwords and credit card numbers while using this website unless specifically required
by an authorized person. Prime Minister's Office in particular or the government of Bangladesh
shall not be liable for any misuse or loss of any such information. See
http://www.bangladesh.gov.bd/index.php?Itemid=148&id=75&option=com_conte...
4. C.f. Cybercrime and Its Impact in Bangladesh, Prof. M. Z. Manum, Prepared by: Md. Tanvir
Hasan, Md. Azizul Haque, Taranna Ansar, Naznin Akther Runa, Belal Hossain, ULAB, Dhaka, May
10, 2009, http://www.scribd.com/doc/27042582/Cybercrime-and-its-Impact-in-Bangladesh
5. C.f. Law Commission of the Republic of Bangladesh Working Paper on the Proposed Right to
Information Act 2002 by ARTICLE 19, March 2004,
http://www.article19.org/data/files/pdfs/analysis/bangladesh-right-to-in...

National Convention on `The State of Privacy
Rights in Bangladesh'
By farjana - Posted on 22 January 2012
A National Convention on `The State of Privacy Rights in Bangladesh' will be held on 11
February 2012 in the CIRDAP auditorium, Dhaka, Bangladesh. The programme will jointly be
organized by VOICE and Privacy International in association with Bangladesh Manobadhikar
Sangbadik Forum, Equity and Justice Working Group, Bangladesh ICT Journalist Forum,
Susashoner Jonno Procharavijan ( Campaign for Good Governance).
The Convention aims to broadly discuss the issues of privacy both of it's practice and it's legal
regime to raise critical awareness and perspective in order to uphold the rights to privacy. It also
aims to build a broader constituency building capacity and strengthening networking through
raising voices on the privacy rights issues. This will focus on sharing experiences drawing the
interactions from the participants on privacy rights in Bangladesh. This will discuss on how to
build synergies and coherence among policies and look for influencing policy makers to
formulate privacy policy to ensure and promote privacy rights. This will also present study
reports on the perception of Privacy conducted by VOICE.
The Convention will bring wide range of stakeholders from around the country-- from grassroots
activists to national including CSOs, NGOs, journalists, academicians, lawyers, rights groups,
online groups, consumers, trade unions, IT companies, member of parliaments and policy
makers. The high ups and the representatives from development partners are also expected to
attend the convention.

Violation of right to digital privacy
Muhammad Mahdy Hassan,Student of Law, Dhaka University.
The concept of right to privacy can be the right to be let alone, which was coined by Thomas
Cooley in his Treaties in the Law of Torts, 1st Edition, 1879, at page 29 under the heading of
Personal Immunity which can be converted today as right to digital privacy. Many of us find that
our lives have become substantially dependent on the internet and deeply tied with a number of
social networking sites like, facebook. Many of us are being also deprived of right to privacy by
it but lawyers, judges, legislators and legal scholars have been slow in adapting the law to tackle
this dynamic and dangerous threat to privacy, especially in Bangladesh. That is why the
protection of right to digital privacy is a demand of todays world.
The right to digital or internet privacy is a vital part of the fundamental right to life under Article
43 of the Constitution of Bangladesh. It states that every citizen shall have the right, subject to
any reasonable restrictions imposed by law in the interests of the security of the State, public
order, public morality or public health (a) to be secured in his home against entry, search and
seizure; and (b) to the privacy of his correspondence and other means of communication. Here
the phrase other means of communication is very significant, which can be interpreted as
Right to Digital Privacy because the social networking site namely facebook is the most
familiar means of communication.
Laws regulating Right to Digital Privacy:
Unlike the United States or the European Union, Bangladesh does not have a comprehensive
statute for data protection and digital privacy. Bangladesh Parliament had passed The
Information & Communication Technology (ICT) Act 2006 aimed at enhancing the use of ICT
in all spheres of activity. The objective of the law is to expand the suitable use of information
technology in overall social system. The Act touches the issue of privacy in section 68, 78 and
79. These are the good provisions in protection of privacy rights in the context of Bangladesh but
on the other hand, the provisions of the ICT Act have long been considered inadequate to deal
with privacy claims of the sort that have become common in light of the proliferation of second
generation social networking sites like facebook. The first hurdle created by the Act is its narrow
and restrictive definition of the term data, which requires it to be prepared in a formalised
manner. The scope of such formalisation remains ambiguous and prima facie does not cover user
data available informally on facebook. There is only one section (section 509) in the Penal Code
relating to the right to privacy that says about the privacy of women. Because of the misuse of
facebook, many girls or womens privacy are being disclosed, which is an offence under section
509 of Penal Code.
Section 63 of ICT Act and Right to Digital Privacy:
Section 63 of the ICT Act is a tool to save the right to digital privacy, which states about the
punishment for disclosure of confidentiality and privacy. This section pledges for the protection
of right to digital privacy but the reality is that this type of offence is occurring every moment by
the facebook users. They are disclosing many personal information, data, electronic record of
others and that is why these information, data and documents are open to the whole world, which
is an offence under section 63 of ICT Act. However, this is a good provision of law but we
cannot see any action against this type of offence because being unaware, lack of knowledge,
and training of the law enforcing agencies.
Digital Privacy Concerning Issues:
Considering the present situation, we see that some facebook users are sharing false information
and fake photography against the Shahbagh Gono Jagoron Mancha. That is why the common
people are being confused about the novelty of this peaceful demand to uphold the spirit of our
independence. On the other hand, facebook was followed by coverage of a more unpleasant story
of a security consultant who used a moderately sophisticated code to scan facebook profiles to
collect data not hidden by the users privacy settings. Facebook sets a particular privacy setting
as default so that anyone can see a persons information unless privacy settings are actively
changed. Therefore, a sizeable proportion of the users inadvertently allow public access to parts
of their personally identifying information merely by failing to change their privacy settings. A
study shows that 41 per cent children and 44 per cent adult facebook users have open privacy
settings, mostly arising out of a failure to change the default settings.
It may further be pointed out that even for more aware and technology savvy users facebooks
privacy controls may prove to be insufficient insofar as a significant portion of their personal
data may be contained on someone elses facebook page. For instance, a user may be tagged in a
photograph or comment posted by a friend and is unable to exercise any control over how that
data is presented and what privacy settings are applied by the friends.
Privacy Policies of facebook and terms of use agreements:
The privacy policies of facebook aim at disclaiming any form of liability and giving websites the
maximum possible freedom with respect to the use of the users personal information, privacy
policies more often than not prove to be unfavorable contracts binding consumers leaving them
with little or no leeway in seeking legal action against the site. As a result, users are likely to
seek challenge and not enforce the binding effect of such policies. The various challenges that
may be raised against this include the absence of free consent, unconscionable terms and illusory
and unenforceable nature.
The most obvious challenge to the enforceability of the privacy policies of social networking
sites is the absence of free consent. According to section 10 of the Contract Act 1872, contract is
enforceable only if both the parties to it have manifested their full and free consent to all its
terms. Recently authorities suggest that users are bound only to such online agreements that
compulsorily require them to view the agreement in their totality in order to complete a
transaction and click on the terms- I Agree (click wrap agreements), a process that is
commonly used for the installation of new software.
It is abundantly clear that law addressing various issues of privacy violation needs to be
strengthened. While various privacy torts such as appropriation, breach of confidentiality and
product liability apply directly to the cases under consideration. Considering above issues, the
Cyber Tribunal is a crying need to protect the right to digital privacy.