This document discusses electronic surveillance and privacy concerns in Malaysia. It provides definitions of electronic surveillance and perspectives on privacy from various scholars. National security is discussed as providing assurance. Primary Malaysian legislation related to domestic security and electronic surveillance is outlined, including powers of arrest, interception of communications, and electronic monitoring of suspects. The legislation is analyzed in relation to potential violations of constitutional rights to privacy, noting Malaysia initially did not recognize privacy rights but has since 2006. The document concludes by proposing areas of consensus between electronic surveillance and privacy rights for the future, including limiting unnecessary information collection, ensuring health and monitoring of electronic devices, providing guidelines for device monitoring, ensuring confidentiality of reports, and allowing appeals of electronic monitoring rulings.

1. There is no god but Allah, and Muhammad
is the messenger of Allah.
ELECTRONIC SURVEILLANCE AND
PRIVACY CONCERN IN MALAYSIA: A
QUEST FOR CONSENSUS
Md. Zubair Kasem Khan
LL.B (Hons.), MCL.
INTERNATIONAL ISLAMIC UNIVERSITY
MALAYSIA (IIUM).

2. E- Surveillance, Right to Privacy, Security
With the proliferation of digital technologies at the hands of individuals and the state, the tension
between security and privacy today has further escalated. The immense development of the
information and communications technologies is seen as important tool to help ensure national
security by way of electronic surveillance.
Electronic
Surveillance
Right to Privacy National
Security

3. What is Electronic Surveillance
‘Electronicsurveillance’connotesanykindofsecretorcloseobservationoverparticularlocation
oraperson,anditcouldbeconductedbyseveralelectronicformssuchasradiosurveillance,
radarsurveillance,Infraredsurveillance,visualsurveillance,aerialsurveillanceandultraviolet
surveillance
Electronic Tracking Devices to
monitor his specific physical
locations and whereabouts.
By way of tracing his Cellular
Phone-calls.
Installation of Video Cameras
by way of photographs,
detectives, robots
‘X-radiation’ that can be used to
peep inside containers or human
bodies without having direct
physical intervention.

4. Notion of Privacy
The abstraction on “privacy” decidedly becomes tricky for anyone simply
to understand what it is meant by and how far it covers.
According to Bloustein (1964 A.D.) & Khan
(2003 A.D.)- “Privacy is linked with human
personality in a way that, ‘autonomy, dignity and
integrity’ of an individual are depended,
influenced and protected by privacy”.
Westin (1967 A.D.) highlighted privacy as - human desire to expose
themselves, their attitudes and believes to others freely.

5. ‘Privacy’ According to Scholars’ Perception
Privacy as the Form of Right to be Alone : by Warren
and Brandeis.
Privacy as the Form of Secrecy : by Richard Posner.
Privacy as a Form of Control over Personal
Information : by Charles Fried and Jerry Kang.
Privacy as an Aspect of Human Dignity : by L. Prosser
and E.J. Bloustein.
Privacy as the Form of Limited Access : by Gavison.

6. Connotation of National Security
“… one purpose, and one purpose
only, the Defence of the Realm.…”
[Lord Denning, 1963]
“…the words 'in the interests of
national security' are not capable of
legal or precise definition. The
circumstances are infinite in which
the national security may be
imperiled, not only by spies in
espionage but in all sorts of indefinite
ways….”[Hanks, Peter, 1988]
“…Security is a slippery concept. Its
meanings are multiple and without
clarity about which meaning is
intended (or understood); exactly what
is being provided and consumed, sold
and bought, promised or sought
remains. obscure….” [Lucia Zedner,
2003]
security as a form of assurance tallies
strongly with the proliferation of
community safety policies and private
security firms. What they sell is … a
form of assurance…Westec: ‘We are
not a security guard company: We sell
a concept of security”

7. E-Surveillance vis-à-vis Privacy Rights:
Chapter Malaysia.
Primary Legislations For Domestic Security
The Security Offences (Special
Measures) Act (“SOSMA”) 2012.
The Prevention of Crime
(Amendment and
Extension) Act (“PCA”) 2013.
Sec. 4(1)
Police
Can
Arrest
&
Detain
Without
Warrant
Sec. 4(6); 7(1 &
4): Attach
Electronic
Monitoring
Device For
Surveillance Of
The Suspected
Criminals.
Sec. 6 (1, 2 & 3):
Power To Intercept
Communication
Transmitted
Through Post,
Message Or
Telephonic
Conversation .
Sec. 7(1)(b) & 7A
(1): Electronic
Monitoring
Device Shall
Attached With
Released
Suspected
Criminals Body
Sec. 7B &
7C:
Establishmen
t Of A
Prevention
Of Crime
Board
Headed By
Chairman.

8. Sec. 4(10) Of The SOSMA 2012 : E-
Surveillance Shall Have Effect
Notwithstanding Anything Inconsistent
With Art. 5, 9 & Sec. 117 Of FCM &
CrPC.
Sec. 5(3) Of The SOSMA: Delay Of
Notifications Shall Have Effect
Notwithstanding Anything Inconsistent
With Art. 5 Of FCM.
Sec. 6(6) Of The SOSMA: The
Power Of The Police Officer Or
Public Prosecutor To Intercept
Communications Shall Have Effect
Notwithstanding Anything
Inconsistent With Art. 5 Of FCM .
Sec. 7(9) Of The SOSMA: Special
Procedures Relating To Electronic
Monitoring Device Shall Have Effect
Notwithstanding Anything
Inconsistent With Art. 9 Of FCM.
Violation of Constitutional Rights.

9. Before 2006:
Ignorance Of Privacy Rights In
Malaysia.
After 2006 and onwards:
Recognition 0f Privacy Rights In
Malaysia.

10. CONSENSUS BETWEEN E-SURVEILLANCE AND PRIVACY
RIGHT: VISUALIZING FUTURE DIRECTION
Firstly, Unnecessary Collection Of Information Over An
Individual By The Security Agency Or By Any Other Public Or
Private Authority Can Contravene Individual’s Privacy Right.
Secondly, Under S. 4(6&7) Of The Security Offences (Special
Measures) Act 2012, Any Possible Health-related Effect Needs To
Be Considered And Mitigated While attaching Electronic Device.
Thirdly, Under S. 7 And Schedule II Of The SOSMA 2012, The
Investigating Officers Are Given Unlimited Power To Track,
Monitor And Retain The Suspected Criminals’ Movement. There
Should Be A Clear Guideline On How These Will Be Monitored
So That The Purpose Of Putting This Electronic Device Could Be
Achieved Without Violating The Privacy Right.
Fourthly, By Virtue Of S. 4(9) Of The SOSMA 2012, It Is Noted
That There Is No Such Provision To Ensure The Confidentiality
Of This Personal Report. Some Certainty In This Aspect Is
Warranted Because The Officer Deals With Data In Electronic
Form, Which Is More Prone To Leak, Disclosure Or Security
Threats.
Last But Not Least, It Is Observed That There Is No Provision
That Confers A Suspected Crime Offender To Appeal Or Contest
The Ruling To Wear this Electronic Monitoring Device Or
Otherwise To Ask The Reason Why He Needs To Wear Such
Device.