Constitutional Limits on State Digital Surveillance in Indonesia: A Proportionality Test of Privacy and Due Process
Keywords:
Digital surveillance; Proportionality test; Privacy; Due process; Indonesia; Constitutional law.Abstract
This paper examines the constitutional limits on state digital surveillance in Indonesia through the lens of the proportionality test and due process. It asks how Indonesia’s constitutional framework, particularly the 1945 Constitution (UUD 1945), constrains digital surveillance and whether existing laws and practices respect privacy, freedom of communication and fair trial rights. Drawing on doctrinal legal research and comparative constitutionalism, the study develops a conceptual framework of digital surveillance, privacy and due process and applies a four‑step proportionality test—legality, legitimate aim, necessity and proportionality stricto sensu—to various forms of state surveillance, including targeted interception, mass data collection and platform‑based monitoring. It finds that Indonesia’s legal landscape is fragmented and often lacking clear statutory authority for surveillance; regulations such as Ministerial Regulation No. 5 of 2020 grant authorities “direct access” to user datawhile investigative agencies have acquired powerful spyware and IMSI‑catcher technologies. Yet the Personal Data Protection Law of 2022 promises stronger safeguards and rights of consent. The analysis argues that any digital surveillance must satisfy a strict proportionality test and be accompanied by due process safeguards such as judicial authorization, specificity, minimization, time limits and effective oversight. The paper offers normative recommendations for reforming Indonesia’s legal framework to balance national security with constitutional rights, and concludes that robust due process mechanisms are essential to prevent privacy erosion in the digital age.
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