Whatever you think, our Law says that if the police has enough evidence to strongly suspect somebody, a court can restrict his right of privacy to gather extra proof.
You may hold any opinion you want, but the above is in Brazilian Constitution, and not even contested by anybody.
I don't know brazilian law, but in my country (Sweden. I'm ashamed...) the Military office for Radio Communications (FRA) is recording all data crossing the border (which of course includes the data of all citizens, since the internet is borderless).
They certainly do not have evidence that every citizen and every foreigner (total 7 billion people) is a pedophile, terrorist or even a jaywalker.
I for one have lost any faith in governance in the information age, and will happily encrypt my communication. If I can sabotage for the organisations spying on me, that is a net win.
No they don't. Your argument doesn't make any logical sense.
Wiretapping is needed during the investigation phase, which you need to gather evidence BEFORE trialling and convicting anyone. And is only authorized if you have strong evidence that a crime or criminal organization is in place.
If only convicted criminals didn't have right to privacy, how would you get them convicted in the first place ?
Also, you really got it 100% backwards. Convicted criminals have right to privacy after they are convicted, because we don't assume they will commit new crimes.
Everybody is presumed innocent until proven otherwise. We must have new evidence that convicted criminals are commiting crimes to start a new wiretap.
Its absurdly simple to make someone an alleged criminal. You simply need to accuse them of a crime. There are many countries where the government does exactly this - they accuse people such as human rights activists of crimes like "fomenting discord" and "promoting unrest" and lock them up. Under your enlightened regime of revoking the human right of privacy from alleged criminal, these people would have no recourse.
So no, your argument doesn't make any logical sense.
I think the reasoning proceed from two different opinions of the citizenry.
It's my opinion that in any reasonably developed and old democracy a majority of the population are currently criminals in the sense that they have broken at least one law.
In reality, that law is either trivial, inconsistently enforced, or generally ignored. But the important thing is that it's still on the books as the law of the land, and therefore makes the citizen prosecutable in a court of law.Whether or not that individual is prosecuted then becomes the folly of most systems -- a choice that can be arbitrarily made (as it's never incorrect for the government to enforce its current laws, even if it can be unjust).
As a consequence of all the above... pre-investigation is tantamount to power-to-convict. And privacy is the only effective deterrent against "I would like to find some crime you're guilty of and then charge you with it because {unrelated and non-legally-based rationale}". Imho, this is the fundamental and most dangerous type of corruption a democracy can fall institutional victim to, because it only requires that there be a large number of rarely-enforced laws on the book (a systemic weakness of democracy where repealing a law takes more effort than leaving it valid) and individuals of questionable motive (human nature) in positions of power.
(I'm perfectly willing to accept that others may have a different viewpoint on democracy, but I think I historical support as to this is the actual way a mature legal system functions)
Those are called 'fishing expeditions'. And given the complexity of the legal system if someone is active in enough fields there will always be something they did that you can use to throw the book at them. You'd have to live like a hermit not to break the occasional law. What is harder to establish is how many of these transgressions would be serious enough to materially impact someone or to cause them to go to jail.
In countries where legal expenses are high and punishments are sever (i.e. the USA) it can be trivial to find something damning enough to put someone behind bars. In countries where the bar for prison sentencing is substantially higher and legal costs are more manageable the most authorities could do is waste someone's time. This is one of those aspects in which societies the world over markedly differ.
You've described a problem privacy only exacerbates. Complete enforcement is the best way to get bad laws adjusted or removed. Privacy makes that harder.
In a completely transparent system, you'll still have bad or questionable laws. You'll just have them only applied to people who can't buy their way out.
Unless complete transparency also solves the corruption problem. ;)
No, it's not, at least not in Brazil. As mentioned above, wiretapping need to be authorized by a judge. The police must provide a reasonable justification. If the provided justification is weak or deemed unlawful, a lawyer can exclude all the data collected in trial.
If privacy is a human right that cannot be violated ever, how are going to deal with criminals that use services such as WhatsApp?
> If privacy is a human right that cannot be violated ever, how are going to deal with criminals that use services such as WhatsApp?
By finding evidence that does not rely on services such as WhatsApp. How did anybody ever get convicted before the age of WhatsApp, or for that matter the invention of the telephone. It's not as if wiretaps and cell phone messages are the only kind of incriminating evidence that can be found on the vast majority of crimes. And if that is the evidence that stands between a free man/woman and their conviction then maybe it is better that they go free because it is all too easy to forge such evidence or to plant it.
> How did anybody ever get convicted before the age of WhatsApp, or for that matter the invention of the telephone.
A nitpick, but I really dislike this line of reasoning. Before WhatsApp criminals communicated using different means which were easier to monitor. Now that they have WhatsApp (or whatever), they will use that instead of easier to monitor methods. A move to modern communication tools gives them an edge over law enforcement, so it's no surprise LE feels a pressing need to do something about it. It's an arms race.
> Before WhatsApp criminals communicated using different means which were easier to monitor
Perhaps sloppy criminals did so, but the careful were engaging in schemes more like what we see on "The Wire". Meeting in secluded, noisy locations wherein privacy was all but guaranteed.
People, including not-convicted criminals, have the right to privacy. If the NSA and law enforcement are going to make it harder and harder to find private places through dragnet collection, it should not be surprising that the populace will seek to reclaim privacy.
If it's an arms race, as you say, it's an arms race that law enforcement was winning at so one-sidedly that the relationship was becoming abusive. Tools like WhatsApp, Telegram, Signal, etc., are the citizenry's first efforts at serious competition.
There is no obligation on the part of criminals to make it easy for law enforcement to catch them, and criminals will use whatever tools they can to stay out of jail. Yes, that's an arms race, but that arms race has nothing to do with whatsapp. That's just a general purpose tool that has been re-purposed. This is what I was getting at with my recent comment that knowledge (and by extension technology) is dual use. You can't make something that will not somehow benefit the bad guys too if it benefits the good guys.
I appreciate that Brazil has implemented this well. Suppose I told you that it was exactly the same in China - the police provide reasonable justification, judges approve the request and only then is someone's privacy violated. Would you buy it? Or would you point out that judges in China are merely rubber stamping authorities?
And lest you think that this is only a problem with China, America has the exact same issue. The FISA court was supposed to hear requests for people's private info but it was a glorified rubber stamp, granting 99.9999% of requests. And that's the problem, you cannot have a free and vibrant democracy when people's privacy is negotiable.
Perhaps that sounds like hyperbole, but have a look at what other commenters are saying about fishing expeditions and tell me if you still think so.
This is a false choice. Apparently in Brazil, if you are suspected of a crime, you have no right to privacy at all. The reasonable alternative to that is not an absolute, unviolable right to privacy, but a limited right to privacy with a presumption of innocence.
No, that's not how investigations work. The police gets some information about some crime (told by the victim, a witness, etc.). Investigates. Then asks the judge "I have a potential crime here, to be sure about it I need to wiretape". The judges gives it or not.
After someone is convicted, there's no use on wiretaping him about something that was already solved.
How simple is it to make someone an alleged criminal, well, that's country specific. Can also be thought on how easy is to have a government receiving data directly from Facebook, or using gag orders, or bombing another country without proofs of any wrongdoing.
1. No, you don't make someone an alleged criminal by simply accusing them of a crime. You need preliminary proofs that a) a crime is happening and b) your target is most likely the author of that crime. Judges are really demanding when analyzing this proof before authorizing a wiretap.
If you authorize a wiretap and you find out a crime, but later the lawyer can demonstrate that the wiretap was illegal (because the judge didn't have enough preliminary proof), the crime discovered is considered to be discovered "by chance", so it nullifies the entire result of the wiretap, based on the theory named "fruits of the poisonous tree", and unless you have enough evidence that doesn't derive at all from the wiretap, the defendant won't be convicted.
2. Read the newspaper in Brazil and you'll see the country is harshly investigating our politicians. We have a senator in jail by a supreme court's order as we speak for god's sake.
3. The same law in Brazil that authorizes wiretapping (Law nº 9296 from 1996) criminalizes with 2 to 4 years of jail anyone that does a wiretap without judicial order or with abuse of power.
In an ideal world, what you said would make sense. But unfortunately many governments and judicial systems around the world are corrupt and they misuse their powers - they have and they will. There is a reason most countries have laws against unlawful search and seizure. Otherwise going by what you said and assuming the judiciary is incorruptible (which is almost probably never by the way), why would we give citizens rights against the government?
The ones involved in the crimes of this case had been convicted already but then they were released recently after a habeas corpus, but are still under investigation and being prosecuted.
You may hold any opinion you want, but the above is in Brazilian Constitution, and not even contested by anybody.