The Right to Privacy and the Challenge of Modern Cell Phone Technology

Abstract

Privacy has been defined as a state in which one is not observed or disturbed by others and has freedom from public attention. A person's right to privacy entails that such a person should have control over his or her personal information and should be able to conduct his or her personal affairs relatively free from unwanted intrusions. The right to privacy has been included in the Constitution of the Republic of South Africa, Act 108 of 1996. The inclusion of the right to privacy in the Bill of Rights as a Fundamental right illustrates how important this right is regarded. By utilizing the latest cell phone technology, non-communicative personal information such as the number that is dialed, the time the call is made, and the movement and location of both the caller and the recipient of a call can be obtained. This type of information is recorded and stored by cell phone companies without the knowledge and consent of users. Technology makes it possible that others can access this information. A number of international instruments such as; the Universal Declaration on Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the UN Convention on Migrant Workers, and the UN Convention on the Protection of the Child contains privacy provisions. This instruments all state that no interference with the right to privacy should be allowed unless provision in domestic laws authorise such interference. Certain decisions of the European Court of Human Rights also confirm this principle and delivered a number of judgments, which dealt with individuals' right to pnvacy. In American cases such as Smith v Maryland 442 U.S. 735(1979) and United States v Miller 425 U.S. 435 (1976) information in possession of third parties do not receive protection if the information is voluntarily conveyed and forms part of commercial records. Canada on the other hand regards the nature of the information to be important to determine if it is personal and if the information reveals intimate details of a person. If it does the person will have reasonable expectation of privacy in the said information.