Germany, for exmaple, has secrecy of correspondence that extends to electronic communications, but allows for "restrictions to protect the free democratic basic order" and outlines when intelligence services can bypass the right to privacy.
Italy, France, and Polan also have similar carve outs.
Having it as a right isn't enough. National security and "public safety" carve outs need to be eliminated. So long as those exist, we have no right to privacy.
Take for example Article 3 of the declaration of human rights:
> Everyone has the right to life, liberty and security of person.
The article already has a collision set up in itself: You have the right to live in safety. But also, everyone has the right to live in liberty. If taken as an absolute, the right of liberty would prevent incarceration of dangerous individuals, violating the other individuals right to all life in safety.
Similarly, other fundamental rights get curtailed: The freedom of speech is in balance with the right to personal dignity of article one and other rights.
Not acknowledging that even fundamental human rights are in a tension with each other is just ignoring reality and will get you nowhere in a legal discussion.
The discussion is not which right is absolute, it is about how to balance the tension between the various rights. And different societies strike a different balance here.
Take for example the right to freedom and liberty. Lifelong imprisonment without parole as punishment is not a thing in Germany. There’s an instrument that allows the court to keep the perpetrator locked up in case the court considers the individual dangerous, but until 1998, this could not be retroactively be applied. There was a major legal upheaval with multiple rounds to the constitutional court to change that and it took until 2012/2013 to find a legal framework that wasn’t declared unconstitutional. To this day, however, Sicherheitsverwahrung is not a punishment, but a combination of therapy and ensuring the safety of society and it’s subject to regular checks if the conditions for the lockup still exist. The individuals are also not held in prisons, but in nicer facilities.
On the other hand, many US states still have the death penalty and are proud of it.
Rights are inherent to human nature, or they are nothing at all. If they could be granted by gov’t, then they can be taken away; they wouldn’t be rights. They allow individuals to fulfill their natural moral duties; you have a right to a good, because you have a prior obligation to pursue it. While the existence of these rights is universal and inalienable, their exercise is not absolute, as they are always limited by justice and the common good of the community. Because these rights are pre-political - they are not legal privileges; the state’s only legitimate role here is to recognize and protect what already exists by nature; any civil law that contradicts them is a perversion of justice rather than a binding law.
So…if privacy is a right (and I would say it is a derivative right, from more basic rights), then it does not follow that its scope is absolutely unrestrained. It’s not difficult to come up with examples where privacy is constrained or abrogated for this reason.
The trouble with broad privacy-violating measures is that they are sweeping in scope and unjustified, making them bad for the common good and a violation of a personal right. It is clearly motivated by technocratic design and desire for control, not the common good and the good of persons. Because it is unjustified, its institution is therefore opposed to reason. It effectively says that no vaild justification need exist. This is a voluntarist, tyrannical order.
The absolutist stance likes to claim that “having justification” is always how rights are violated, but this is wrongheaded. This is tantamount to claiming that we can’t tell a valid justification from an invalid one. But if that were true, then we are in much worse shape than such people suppose. If we cannot discern a valid justification from a bad one, then how can we have the capacity to discern when a right is being violated at all? Furthermore, it is simply not the case as a general political rule that gov’ts will violate rights if those rights are not absolute (which has never been the case anyway). The evidence does not support this thesis. And furthermore, if a gov’t wishes to violate a right, treating it as if it were an absolute doesn’t somehow prevent it from being violated. Some place too much faith in supposed structural elements of gov’t as ways to keep this from happening (like separation of powers), but there is nothing in principle to prevent these branches from cooperating toward such an end.
In this case, I see no reason that we would want to draft constitutional rights such that we consider a government's actions taken in pursuit of their national security to be, per se, legal — i.e. warranted, unable to be sued over, etc.
Imagine instead, a much weaker right granted to the state: the right to maintain laws or regulations which require/force government or military employees to do things that violate people's rights and/or the law of the land. But with no limit on liability. No grant of warrant. Just the mildest possible form of preservation: technically constitutional; and not immediately de-fanged the first time the Supreme Court gets their hands on it.
So, for example, some state might introduce a new law saying that soldiers can come to your house and confiscate your laptop. And then the head of that state might actually use that law to invade your home and take your laptop.
Given that the law exists, it would be legal for the head-of-state to give this order. And it would also be legal for the soldiers to obey this order (or to put it another way, court-martialable for the soldiers to disobey this order, since it's not an illegal order.)
But the actual thing that happened as a result of this law being followed, would be illegal — criminal theft! — and you would therefore be entitled to sue the state for damages about it. And perhaps, if it was still reporting on Find My or whatever, you might even be entitled to send police to whatever NSA vault your laptop is held in, to go get it back for you. (Where, unlike the state, those police do have a warrant to bust in there to get it. The state can't sue them for damages incurred while they were retrieving the laptop!)
The courts wouldn't be able to strike down the law (the national-security provision allows the state to declare it 'not un-constitutional", remember?); but since obeying the law produces illegal outcomes, you would be able to punish the government each and every time they actually use it. In as many ways as the state caused you and others harm through their actions.
There is absolutely zero reason why the state shouldn't be expected to "make people whole" for damages it has caused them, each and every time it does something against the people's interest in the name of national security.
And the simplest way to calculate that penalty / make the claiming and distribution of those rewards practical, would be to just not remove liability for these actions taken on behalf of the state, by not granting the state the right to do them in the first place. Just put them in the position of any other criminal, and force them to go to court to defend themselves.
Change my mind!
It's incredible how even with the current surge of autocracy, most politicians can't see that the surveillance tools they crave for, could come under control of people much worse than them.
And can't see what they could do with them.
I think that many current governments in Europe are convinced that more surveillance will stop the autocratic surge. It's insane that they don't see how this is far from guaranteed, and how it will go if they're wrong.
This is overly absolutist, or maybe idealistic view. National security and public safety IS more important than individual right to privacy. As an extreme example, if your friend was dying, you had a password to my email, and you knew that you can use information in my inbox to save that person i really hope you would do it.
In general I think that police with a court order should be able to invade someone's privacy (with judge discretion). I mean they can already kick down someone's doors and detain them for several days - checking email doesn't sound too bad compared to it, does it? I think they should also be legally obliged to inform that person in let's say 6 months that they did it.
The problem is that modern world is drastically different than the old world when you needed to physically hunt down letters. Now you can mass scan everyone's emails, siphon terabytes of personal data that stasi could only dream of, and invigilate everyone. This is something that is worth fighting against.
I disagree.
Because as soon as you open the door to governments reading your mail, they will read your mail. They can't help themselves. [0]
The only way of stopping them from doing this to excess is to stop them doing it at all.
The "National Security and Public Safety" thing is what they say to justify it, but that's not what the powers will actually be used for. They will actually be used for far less noble purposes, and possibly actually for evil.
We are actually much more secure if we don't let the government read our mail.
[0] In the UK, anti-terrorist laws passed in the post-9/11 haze of "national security and public safety" are routinely used for really, really, minor offences: https://www.dailyrecord.co.uk/news/scottish-news/anti-terror...
