Monitoring phone calls and privacy

The privacy has immunity. The state is obliged not only to intervene in the privacy but also to provide immunity for the individual’s privacy. This is one of the key criteria separating a democratic state from an authoritarian state. Through monitoring phone calls, the state interferes with personal privacy. Strangers whom you don’t know at all know every single detail about you, from your sexual life, to your diseases, from your relations with friends to food you eat. And you have no knowledge about any of these. For the justification of such a serious interference, the monitoring must base on dead serious reasons and rock-solid assurances. If there is general fear of being wiretapped assurances are vital.Â

What about the other’s situation?
There is another side of the story. What about the privacy of the other person who is on the phone with the person being monitored? There is neither rightful reason nor court permission to eavesdrop this other person. The subject in the case which the Constitutional Court has reached the decision already and the subject in another one pending for ruling is how firm the assurances, provided by the state for interference with the privacy, are. With an amendment in the law, a Telecommunication Communication Directorate was formed to monitor the eavesdropping activities of the National Intelligence Organization, or MÄ°T, the Security Directorate and the Gendarmerie Commandership. All three institutions are parts of the executive.

The director is appointed by the prime minister. Therefore, both the monitored and the monitoring organization are controlled by the executive body. Can you expect an independent and neutral performance of duty from this organization? For this reason, the Constitutional Court’s decision overruling the appointment of the director by the prime minister is in place.

But there are elements that have not been annulled in the law. The MİT, Security Director and Gendarmerie Commandership have representatives at the Telecommunication Communication Directorate according to the law. In other words, both the monitoring and the monitored are within the same institution. Can people already having fears of being eavesdropped believe that such an organization is able to give assurance against the state’s intervention in privacy? If Turkey, however, had been signed the Act of Data Protection and Privacy, it wouldn’t have faced the aforementioned problems in the first place. Forty-one of 47 states in Europe signed this agreement. Armenia, Azerbaijan, Russia, San Marino, Turkey and Ukraine do not have yet a signature on it. Is Turkey less sensitive for the protection of privacy than the European states? Besides, the act does not ban monitoring phone calls, only seeks some sort of assurances.

A control mechanism is a must
The act’s addition protocol proposes formation of an independent control mechanism in the state structure, with the authority of filing an investigation and of interference. If the law is breached, the control mechanism brings this to the attention of the judicial bodies as it hear complaints of individuals whom their personal data in the hands of others.

If Turkey had had such a mechanism by signing the said act, none of the problems we have mentioned above would’ve occurred. Technology develops quickly and monitoring phone calls are without doubt getting easier. The problem here is applying technology without hurting any individual rights. And this is provided by the legal system. In line with technological developments, responsibility of the judiciary to ensure individual rights and freedoms is increasing. If the law cannot fulfill this task, democracy will be harmed severely.