The Erosion of Privacy: Big Brother Is Watching

First published in June 2007 in The Phnom Penh Post as part of the Voice of Justice columns, which I co-authored with a brilliant legal intern from U.C. Berkeley Law School, Erin Pulaski. As the government's morality squad go about cracking down on pornography, let them and us be humbly reminded of the possible dangers of overzeal, overreaching, and hypocrisy as well as the need for the balancing of interests in light of fundamental rights, e.g. freedom of expression. - thearyseng.com
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THE EROSION OF PRIVACY:
BIG BROTHER IS WATCHING

Each one of us occasionally has been under the scrutiny and judging gaze of another; we feel uneasy, uncomfortable, inhibited,stifled, and drained of energy, unable to be much else but awkwardly self-conscious.

Now, imagine a society where you could be monitored and watched at every second of the day or night, every day of the week, every week of the year - possibly all the time. Imagine a society in which those with power theoretically can always listen in, watch, monitor your every move, no matter how private and intimate the occasion, and then use the exchange as evidence against you legally and publicly.

Imagine no private space, no private conversation, because everything could eventually be made known - when you talk politics with your friends; when you speak intimately with a lover; when you go to work; when you take a shower. Such intrusion and surveillance by the State has devastating effects on the self and the nation. Under the relentless chilling gaze of the State, people live in fear of being judged and even persecuted for mistakes, which would otherwise be lessons in growth and self-development. When individuals are no longer afforded the private space to try and make mistakes, and learn from their mistakes under the shade of trust and confidence and away from outside scrutiny, personal development is stunted.

Self censorship takes hold and individuals become increasingly afraid to share their opinions. They live in constant fear of slipping up; they become suffocated by the continuous pressure of maintaining this facade.

Distrust and suspicion become widespread Individuals wonder who may be helping to monitor them. Is it their neighbor? Their boss? Their best friend? Their spouse? Their child? They learn to see others only as potential enemies, not as fellow human beings. They themselves cease to be fully human. Eventually they grow so accustomed to smothering their own characteristics and opinions that their individuality is extinguished. Rather, they become mechanical, automated, slavish, unable to truly live as vibrant and free individuals. It is as if they cannot even breathe by their own will; they are only robotic extensions of the State.

A monitored life is an imprisoned, inhibited life that stifles all creativity, imagination, growth, genuineness, trust, everything that is of any worth and meaning in daily life. Unfortunately, the society described above is a reality in some places in the world, and is nearing reality here in present-day Cambodia as the right to privacy is increasingly diminished. Under the newly-adopted Criminal Procedure Code and the envisioned draft law against terrorism, broad measures of Intrusion into private lives are permitted in the pursuit of combating crimes and terrorism.

The Right to Privacy under the Khmer Rouge

The erosion of privacy in Cambodia takes on a more sinister implication in light of our current history when the Khmer Rouge completely abolished all privacy, individual rights where we lived in constant fear and distrust, and where even children eavesdropped and reported on their own parents.

The Right to Privacy Today: Danger Zone

Thirty years later, the kind of Orwellian society that Cambodians witnessed in the late 1970s threatens to return. The current government has been known to monitor and record individuals' phone conversations in order to discredit or imprison political opponents. Indeed, Prince Norodom Sirivudh was stripped of his political immunity in 1995 based on a phone conversation that was secretly recorded. Police searches of private homes without a warrant are a routine occurrence. These problems will be exacerbated under the new Criminal Procedure Code which allows for phone tapping, and the envisioned Anti-Terrorism bill, which allows for nearly limitless governmental surveillance of individuals in the name of national and international security. Even if it could be argued that privacy rights must be occasionally infringed upon in the name of security, such invasions must be infrequent, and only in the most extreme cases, and the secretly tapped exchange should not be used as evidence, but only a lead to other more substantive evidence. We must not become a society in which, as Herbert Packer put it, "all are safe but none are free".

We cannot allow Cambodia to retreat back into the time of Pol Pot, in which the threat of constant surveillance forced us to literally shut our mouths and stand by while corruption and human rights abuses abound. Tragically, the world described in the beginning of this column is all too easy to imagine because we have already lived through these circumstances once, and the residue of fear is still a reality.

Though privacy rights are currently under attack all over the world, Cambodia is particularly vulnerable. While many other nations have institutions and concrete statutory protections that can counter a government's overzealous monitoring of its population, Cambodia still lacks many such measures. For example, in Canada, a federal Privacy Commissioner exists to investigate complaints around and challenge excessive intrusions into the privacy of individuals. Japan passed the Interception Law in 1999, authorizing wiretapping in the investigation but restricting its use to prosecutors and police officers of a certain rank. Additionally, these officials are required to obtain a warrant before monitoring, and to notify those monitored after the investigation.

In countries like Canada, Japan and the United States, an extremely high threshold exists before an intrusive measure is even raised for debate. Moreover, these countries have counter-balancing power of strong institutions and sophisticated technology to test and challenge the legitimacy and genuineness of wiretapping, computer tampering etc. to prevent potential abuse. These protective measures are lacking in Cambodia.

Unfortunately, while the right to privacy is more difficult to protect in Cambodia, there is also a much greater need for it. Cambodia remains a very fragile society which is still rebuilding itself. We, Khmers, remain distrustful of each other, of foreigners; we lack confidence in our ability to control the happenings in our lives. Such distrust and lack of confidence will only be worsened by the constant pressure that comes with extensive governmental surveillance. Without the ability to feel comfortable taking risks, making mistakes, and asking questions, we Khmers will find it more difficult to develop the insight and vision required to undertake the re-building our individual selves and society.

Privacy Rights are Universal and Must Be Realized

To be human Is to be free. We are not free and it is mental imprisonment when we live under the constant, eerie gaze of the State. Hence, the right to privacy is so sacred to human existence. The intrusions strip us of our individuality, examining and prodding at our thoughts until such thoughts are "acceptable" in the eyes of those in power. Freedom of religion means little if we cannot pray in solitude or gather in private for religious worship. Freedom to marry the person of one's choice is diminished if partners cannot share intimate moments and expressions of their feelings away from prying eyes. A right to actively participate in political life does not truly exist when individuals are forced to fall silent and not debate. Privacy is not a privilege, it is a right, universally desired and recognized.

This right to privacy is the very heart of human dignity. It is the foundation upon which we build our personality and aspirations, make relationships, and think creatively and critically. Who, being watched, can give in to their emotions with abandon, can jump for joy or howl in sorrow? Who, being listened in on, can express their deepest desire or their greatest fear, can share their most intimate secret, or can challenge injustices perpetrated by the powers-that-be? Who, under the threat of constant public scrutiny, can cast convention aside and "think outside the box"?

Intrusions into our privacy force the creative, the wise, the dreamers, and the critics to fall in line out of fear. Without privacy there can be no true passion, intimacy, or uniqueness - thus without privacy there is no self.

The new Criminal Procedure Code which allows for phone tapping, and the draft Anti-Terrorism Law which permits broad intrusive measures dangerously restrict our constitutional right to personal freedom. These are insidious developments for our fragile society and people who are already traumatized by the fears instilled by the Khmer Rouge and who continue to live within a culture of fear.

We must preserve our privacy and thus preserve our ability to think, to be, to act, to breathe freely.

Erin Pulaski
Legal Intern, UC Berkeley

Theary C. SENG, a member of the New York Bar Association, former director of Center for Social Development (March 2006—July 2009), founder and Board of the Center for Justice & Reconciliation (www.cjr-cambodia.org), founding adviser of the Association of Khmer Rouge Victims (www.akrvc.org), is currently writing her second book, under a grant, amidst her speaking engagements. For additional information, please visit Theary's website at thearyseng.com.