The choice of these two countries for comparison is not random, and it is not a joke. The United States is considered by many to be the cradle of democracy, while North Korea is generally thought to be one the most totalitarian states on the planet. So, the hypothesis is that the laws regulating privacy in these two countries would be very, very different.
The role of the world’s “cradle of democracy” inherently suggests that the United States should have personal data and privacy of correspondence tightly protected by the law. In a totalitarian state like North Korea, the law is rather expected to strip the citizens of any such protection. In this article, we’ll take a look at the reality and see how far or close it is to popular beliefs and assumptions.
US Constitution on Privacy
Ironic as it is, the United States Constitution gives no guarantees of privacy of correspondence and communication exchanges. The country’s supreme law does not even mention them, let alone detail legal remedies for them. Whether and how privacy is applied to messages, correspondence and other communications is defined in each and every case by legal argument in a court of law. Such argument is usually based on the Fourth Amendment to the United States Constitution and basically hangs on just one word mentioned in it:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Fourth Amendment as such prohibits unreasonable searches and seizures and does not directly regulate issues of confidentiality or interception of correspondence.
The 1878 case Ex parte Jackson, 96 U.S. 727 (1878) is considered to be pivotal for the Fourth Amendment jurisprudence. The ruling of the United States Supreme Court on this case stated the following:
No law of Congress can place in the hands of officials connected with the postal service any authority to invade the secrecy of letters and such sealed packages in the mail; and all regulations adopted as to mail matter of this kind must be in subordination to the great principle embodied in the Fourth Amendment of the Constitution.
However, the entire history of judicial decisions in the United States has shown to date that this ruling does not always apply. The country’s precedent-based legal practice allows quite a lot of leeway in interpretation of each case’s circumstances. Whether and how the privacy protections of the Fourth Amendment shall apply is decided by the so-called “reasonable expectation of privacy” rule, but as of today, the United States law has no exhaustive definition of what that actually is.
Communications Privacy in the US
The Electronic Communications Privacy Act of 1986 (ECPA) was enacted to extend government restrictions on wire taps from telephone calls to transmissions of electronic data, but in the end proved to be that same loophole that allowed the US state agencies to get access to the users private data, in particular emails, without as much as a court order.
The ECPA introduced a distinction between e-mails in electronic storage on third-party servers for 180 days or less and those in electronic storage longer than 180 days, and allowed for law enforcement agencies to compel disclosure of the content of any emails with a mere subpoena after the they are more than 180 days old. Many argue these days that this distinction is wildly out-of-date.
Some US laws actually, as many argue, violate the Fourth Amendment, such as the USA PATRIOT Act passed by the United States Congress in 2001 in order to strengthen national security in response to the September 11 attacks. The law’s provisions allowed for the disclosure of electronic communications to law enforcement agencies and introduced “sneak and peek” warrants and roving wiretaps, which allowed the FBI and the NSA to search and wiretap citizens without a proper court order.
In 2015, the USA Freedom Act re-introduced some provisions of the PATRIOT Act, which had expired the day before, albeit in a milder form. It imposed some new limits on collection of telecommunication metadata on U.S. citizens by American intelligence agencies, including the NSA. However, the law has been widely criticized by civil liberties advocates who maintained that it made only slight improvements.
The Executive Order 12333 signed by President Ronald Reagan in 1981 and amended by President George W. Bush 27 years later only to strengthen it further is yet another of the US fundamental laws that are in conflict with the Fourth Amendment. This order authorized the expansion of data collection activities and was used by the NSA for massive collection of unencrypted communication data exchanged online. While formally data and metadata of the US citizens are protected on the US territory, the law allows for “incidental” collection of their data if a foreign target is investigated or if the data is stored on a server outside the US, which is a routine thing for the World Wide Web.
These facts were disclosed by former State Department employee-turned-whistleblower John Tye who revealed through mass media that “under 12333 the NSA could target a single foreigner abroad. And hypothetically if, while targeting that single person, they happened to collect every single Gmail and every single Facebook message on the company servers not just from the one person who is the target, but from everyone — then the NSA could keep and use the data from those three billion other people.” In 2014, before his resignation from the State Department, John Tye filed an official complaint with the Department’s inspector general, asserting that the intelligence collection and retention policies carried out under Executive Order 12333 violated the Fourth Amendment to the United States Constitution.
Constitution Privacy of Correspondence in North Korea
North Korea’s Constitution in fact contains a provision that specifically deals with privacy and confidentiality issues in a more explicit and direct manner that the US Fourth Amendment. The Constitution’s Article 79 states that:
Citizens are guaranteed inviolability of the person and the home and privacy of correspondence. No citizens can be placed under control or be arrested nor can their homes be searched without a legal warrant,
meaning effectively that privacy of correspondence is guaranteed and protected by the main law in North Korea.
However, despite this democratic law being in place, there is multiple evidence gathered by the Human Rights Watch and Amnesty international, as well as researchers, including expert on North Korea Scott Thomas Bruce, author of Information Technology in North Korea: A Double-Edged Sword, indicating that North Korea’s State Security Department and Ministry of Public Security have unrestricted access to all personal and communication data of the country’s citizens, including their emails and other types of correspondence.
North Korean authorities insist that the reason for such massive and systemic violation of privacy is dictated by the higher cause of public security they maintain by combating such crimes as treason (punishable under Article 63 of the Criminal Code of North Korea), illegal trading in foreign currencies (punishable under Articles 106, 107 and 108 of the Criminal Code), illegal trade (punishable under Article 111), brokerage activities (punishable under Article 112), illegal business activities (punishable under Articles 114 and 115) and smuggling (punishable under Article 119). The punishment ranges from death penalty to 10 years of forced labour in detention facilities, which de facto can mean up to 3 lifetimes in prison.
Obviously, such freedom of surveillance must be granted by some confidential official documents and regulations. We have not been able to locate any official documents sanctioning such actions in public domain.
It is in a way surprising that the Constitution of North Korea much more explicitly guarantees protection of privacy than the United States Constitution and its Fourth Amendment. The comparison of privacy and confidentiality protection in these two countries, however, allows us to say that the situation for both countries’ citizens was more or less the same until 2015, one dramatic difference being that the US has vastly superior information technologies; and another dramatic difference being that all the laws in the United States, even those sanctioning surveillance and data collection, are available to the public, while North Korea keeps its special regulations in secret.
In 2015, with the USA Freedom Act, protection of the US citizen’s data was boosted as the law made court orders mandatory for all intelligence collection activities. However, many civil rights activists argue that this still remains a formality. Violation of privacy in North Korea is more massive, aggressive and blatant, but it is not the only country that allows for such violation. Even transparency of law and massive Fourth Amendment jurisprudence do not rule it out for the United States, and that country knows how write its laws, that’s for sure.