There is no god but Allah, and Muhammad is the messenger of

Allah.

ELECTRONIC SURVEILLANCE AND PRIVACY CONCERN IN MALAYSIA: A QUEST FOR CONSENSUS

Md. Zubair Kasem KhanLL.B (Hons.), MCL.

INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA (IIUM).

E- Surveillance, Right to Privacy, Security

1 2

With the proliferation of digital technologies at the hands of individuals and the state, the tension between security and privacy today has further escalated. The immense development of the information and communications technologies is seen as important tool to help ensure national security by way of electronic surveillance.

ElectronicSurveillance

Right to Privacy NationalSecurity

What is Electronic Surveillance

‘Electronic surveillance’ connotes any kind of secret or close observation over particular location or a person, and it could be conducted by several electronic forms such as radio surveillance, radar surveillance, Infrared surveillance, visual surveillance, aerial surveillance and ultraviolet surveillance

Electronic Tracking Devices to monitor his specific physical locations and whereabouts.

By way of tracing his Cellular Phone-calls.

Installation of Video Cameras by way of photographs, detectives, robots

‘X-radiation’ that can be used to peep inside containers or human bodies without having direct physical intervention.

Notion of Privacy

The abstraction on “privacy” decidedly becomes tricky for anyone simply to understand what it is meant by and how far it covers.

According to Bloustein (1964 A.D.) & Khan (2003 A.D.)- “Privacy is linked with human personality in a way that, ‘autonomy, dignity and integrity’ of an individual are depended, influenced and protected by privacy”.

Westin (1967 A.D.) highlighted privacy as - human desire to expose themselves, their attitudes and believes to others freely.

‘Privacy’ According to Scholars’ Perception

Privacy as the Form of Right to be Alone : by Warren and Brandeis.

Privacy as the Form of Secrecy : by Richard Posner.

Privacy as a Form of Control over Personal Information : by Charles Fried and Jerry Kang.

Privacy as an Aspect of Human Dignity : by L. Prosser and E.J. Bloustein.

Privacy as the Form of Limited Access : by Gavison.

Connotation of National Security

“… one purpose, and one purpose only, the Defence of the Realm.…”

[Lord Denning, 1963]

“…the words 'in the interests of national security' are not capable of

legal or precise definition. The circumstances are infinite in which

the national security may be imperiled, not only by spies in

espionage but in all sorts of indefinite ways….”[Hanks, Peter, 1988]

“…Security is a slippery concept. Its meanings are multiple and without

clarity about which meaning is intended (or understood); exactly what is being provided and consumed, sold

and bought, promised or sought remains. obscure….” [Lucia Zedner,

2003]

security as a form of assurance tallies strongly with the proliferation of

community safety policies and private security firms. What they sell is … a form of assurance…Westec: ‘We are

not a security guard company: We sell a concept of security”

E-Surveillance vis-à-vis Privacy Rights:Chapter Malaysia.

Primary Legislations For Domestic Security

The Security Offences (Special Measures) Act (“SOSMA”) 2012.

The Prevention of Crime (Amendment and

Extension) Act (“PCA”) 2013.

Sec. 4(1)Police Can

Arrest & Detain

Without Warrant

Sec. 4(6); 7(1 & 4): Attach Electronic

Monitoring Device For

Surveillance Of The Suspected

Criminals.

Sec. 6 (1, 2 & 3): Power To Intercept

Communication Transmitted

Through Post, Message Or Telephonic

Conversation .

Sec. 7(1)(b) & 7A (1): Electronic

Monitoring Device Shall

Attached With Released Suspected

Criminals Body

Sec. 7B & 7C:

Establishment Of A

Prevention Of Crime

Board Headed By Chairman.

Sec. 4(10) Of The SOSMA 2012 : E-

Surveillance Shall Have Effect

Notwithstanding Anything

Inconsistent With Art. 5, 9 & Sec. 117

Of FCM & CrPC.

Sec. 5(3) Of The SOSMA: Delay Of

Notifications Shall Have Effect

Notwithstanding Anything

Inconsistent With Art. 5 Of FCM.

Sec. 6(6) Of The SOSMA: The Power Of The

Police Officer Or Public Prosecutor

To Intercept Communications Shall Have Effect Notwithstanding

Anything Inconsistent With

Art. 5 Of FCM .

Sec. 7(9) Of The SOSMA: Special Procedures Relating To Electronic Monitoring Device Shall Have Effect Notwithstanding Anything Inconsistent With Art. 9 Of FCM.

Violation of Constitutional Rights.

Before 2006:

Ignorance Of Privacy Rights In Malaysia.

After 2006 and

onwards:Recognitio

n 0f Privacy

Rights In Malaysia.

CONSENSUS BETWEEN E-SURVEILLANCE AND PRIVACY RIGHT: VISUALIZING FUTURE DIRECTION

Firstly, Unnecessary Collection Of Information Over An Individual By The Security Agency Or By Any Other Public Or Private Authority Can Contravene Individual’s Privacy Right.

Thirdly, Under S. 7 And Schedule II Of The SOSMA 2012, The Investigating Officers Are Given Unlimited Power To Track, Monitor And Retain The Suspected Criminals’ Movement. There Should Be A Clear Guideline On How These Will Be Monitored So That The Purpose Of Putting This Electronic Device Could Be Achieved Without Violating The Privacy Right.

Fourthly, By Virtue Of S. 4(9) Of The SOSMA 2012, It Is Noted That There Is No Such Provision To Ensure The Confidentiality Of This Personal Report. Some Certainty In This Aspect Is Warranted Because The Officer Deals With Data In Electronic Form, Which Is More Prone To Leak, Disclosure Or Security Threats.

Last But Not Least, It Is Observed That There Is No Provision That Confers A Suspected Crime Offender To Appeal Or Contest The Ruling To Wear this Electronic Monitoring Device Or Otherwise To Ask The Reason Why He Needs To Wear Such Device.