The controversial covert surveillance bill was finally passed at the weekend, after years of the administration invading people's privacy and broaching the Basic Law. During the four-day debate in the Legislative Council, every amendment moved by pro-democracy legislators was defeated. Seeing that all their efforts to ensure better protection of people's privacy were thwarted, the pro-democracy legislators voted against the bill.
I accept that law-enforcement agencies may sometimes need the power to intercept communications, and conduct covert surveillance, to deal with threats to public security such as terrorism, trafficking in weapons of mass destruction and other heinous crimes.
However, there should be checks and balances to ensure that those powers will not be abused. The bill should have carried a statement noting the administration's constitutional responsibility to protect the people's right to privacy. But demands for that were rejected.
According to the bill, the purpose of interception and covert surveillance is to prevent or detect serious crimes and to protect public security. But it sets out no definition of public security. To allay concern that the law may be used to target political enemies, Secretary for Security Ambrose Lee Siu-kwong told Legco that law-enforcement agencies would, under no circumstances, conduct surveillance activities for political purposes. He also said interception and covert surveillance would not be carried out in the case of offences that are yet to be created under Article 23 of the Basic Law.
But since Mr Lee refused to put these undertakings in the law, there is concern that its powers may be used for political ends. Furthermore, covert surveillance carried out without using surveillance devices is not covered by the bill. Thus, such surveillance activities will not be regulated.
Of central importance to covert surveillance is the concept of a 'reasonable expectation of privacy'. According to the bill, a person has a reasonable expectation of privacy if he makes an effort to preserve that privacy, and if his expectation seems reasonable to society. But I doubt if anyone knows what that means.
According to the code of practice that will be issued to law-enforcement agencies, a person is likely to have a reasonable expectation of privacy if he has secluded himself in private premises, such as his home or office. But when the person is in plain view (standing before an open window, for example) and visible to the naked eye of passers-by, then law-enforcement officers may observe him without infringing on his privacy.