Invasion of privacy and personal data in Turkey

This Thursday will be the third anniversary of the constitutional referendum of Sept. 12, 2010 — perhaps the most important piece of constitutional reform in Turkey that set the country firmer on the path of democracy with a major overhaul on the judiciary. The Turkish public approved the 26 article amendments to the military-era drafted Constitution of 1982 with a landslide, underscoring its strong desire and commitment to see the government pursue democratic reforms at the expense of a rigid and state-centered system. Yet, 36 months later, it is with some bewilderment and disillusion that some of the working pieces of legislation that need Parliament to take action on in order for these amendments to be implemented have not even been submitted to Parliament by the ruling Justice and Development Party (AK Party) government.

Supporters of the government would come up with excuses like Parliament’s agenda was quite busy and the national debate was too hectic for the government to focus on these reforms. I find that hard to believe, however, considering that the government hastily pushed dozens of legislative changes through Parliament since 2010 to serve the interests of narrow constituencies and cleverly lumped a series of unrelated amendments together in a so-called omnibus bills to hide them from public discussion. If the AK Party government had really wanted to, it could have easily brought much-awaited legislation to harmonize Turkish law with publicly approved constitutional articles.

I will focus on one unfulfilled promise by the AK Party here. One of the most important changes in the 2010 referendum was the protection of personal data in Article 10 of the Constitution. The revised article said “everyone shall be entitled to request the protection of personal information.” It further expanded on it by saying that the gathering of personal information by the state is allowed only when it is in the best interest of the public that such information be gathered — and only as long as there is legislation in place ensuring the confidentiality of such data. The article also gives citizens the right to know whether at any point personal information about them had been recorded; the right to review any such data; and the right to demand correction in cases of erroneous, mistaken or inadequate data.

This was a breakthrough amendment that empowered Turkish citizens against the notoriously intrusive and inquisitive state that used to profile its own citizens based on their ethnic, religious or ideological affiliations. The so-called “blacklisting” of names of people who belonged to certain groups — by choice or by birth — was instrumental in much of the republican history in prosecuting, persecuting, stigmatizing or marginalizing large swathes of citizens of this country. Even high-profile politicians serving in the government today have been victimized because of such practices in the past. They should know better. It is past time to put this important remedy to hold state agencies responsible for misusing or abusing personal information.

In fact, the AK Party government people should have been at the forefront in advocating changes to turn this important gain in the name of democracy into reality. This constitutional change required a number of amendments to current laws, including the Turkish Penal Code (TCK), the Law on the Acquisition of Information and the Law on the Protection of Personal Data, so that existing legislation would be in harmony with the Constitution. The Ministry of Justice reportedly prepared a draft and sent it to the Prime Minister’s Office for review and forwarded it to Parliament. To this day, it has not cleared the prime minister’s desk.

Even the EU has been critical of the government for not bringing the bill on personal data protection to Parliament. Last year’s EU Progress Report stated that “with regard to respect for private and family life and, in particular, the right to protection of personal data, Turkey needs to align its legislation with the data protection acquis and set up a fully independent data protection supervisory authority.” It also noted that “the absence of data protection legislation hampers operational cooperation between police and judicial authorities and on counter-terrorism.” Turkey has long been complaining about the lack of forthcoming cooperation from a number of EU member states in terrorism, especially on cracking down on the recruitment and fund-raising activities of the Kurdistan Workers’ Party (PKK) in Europe. The EU member states cite lax personal data protection legislation in Turkey as a reason to not fully cooperate or coordinate with Turkey on terrorism. For few, it is probably just an excuse, but for most others this is a legitimate concern. In either case, Ankara needs to put its house in order first before going haywire on EU member states on this issue.

Without a working legislation, the constitutional amendment the public approved in 2010 will most likely end up in the same basket as the European Convention on Human Rights (ECHR). Article 8 of the ECHR protects the fundamental human right to respect private and family life, home and correspondence, which includes the right to the protection of personal data as well as the obligation to establish appropriate safeguards under domestic law in this regard. In 2004, Turkey made an amendment to Article 90 of the Constitution to make sure domestic courts pay attention to international treaties, most notably the ECHR articles. The change required judges and prosecutors to apply articles of the ECHR in the case of any conflict between domestic law and the articles of the convention. It almost never worked, because provisions in the convention were not in the working legislation, not to mention the pro-state judicial mindset that hampered such a broad perspective. As a result, unless there is no legislation stringent enough to make the constitutional provision on protection of personal data work, the 2010 change will be rendered useless.

By the way, Turkey, one of the founding members of the Council of Europe (CoE), has not done its homework as a full-fledged member of the 47-nation, largest intergovernmental organization in Europe that champions the rule of law, democracy and fundamental human rights. For example, Ankara still did not ratify the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data yet, even though it signed it in 1981. It also did not ratify the Additional Protocol to the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, regarding supervisory authorities and transborder data flows, for which Ankara signed on in 2001.

Perhaps the current government is not interested in enacting laws to promote the protection of personal data. If some of the local reports are true, it may even have found it useful to monitor citizens and listen in on their conversations, especially those in the opposition, through the intelligence agency. The independent Taraf daily published reports accusing Turkey’s spy agency, the National Intelligence Organization (MİT), of doing dirty work for the government against the opposition — very much like the Watergate scandal of the 1970s in the US. Despite the Nixon administration’s attempts to cover up its involvement in Watergate, the scandal was exposed. In Turkey, generals used to eavesdrop on politicians, bureaucrats, businesspeople and even ordinary citizens using military intelligence. Now, they are being tried in courts of law for these activities. The truth eventually comes out, sooner rather than later in this information age. Even the US was exposed for massive spying activity all over the world and it created a major embarrassment for the Obama administration.

Against the background of the series of protocols MİT has reportedly signed with a number of government agencies, including but not limited to agencies of postal carriers, social security, the land registry as well as Turkish Airlines (THY) and the Ministry of Education, Turkish citizens need to worry about the invasion of their privacy more than ever. The lack of required legislation to harmonize the penal and civil codes in line with the revised charter, as well as the lack of an administrative capacity to oversee compliance on the protection of privacy, gives the government the power to operate in a vacuum at the expense of our private lives. The citizens of this country fear that their phones may have been tapped, their communications intercepted and their private lives ransacked by prying eyes — all without due process. This is a legitimate concern and the government needs to do something about it.

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