Privacy and Human Rights - Lefis by pengxuebo


									Data Protection and Privacy: Changing
   Interplay among Social Values?

     Mindaugas Civilka, Vilnius University

               Rovaniemi meeting
              19-20 January, 2007
  Law and Privacy – where the social background and
        individual values meet each other (I)

• Historically perceived as human right to be left alone, in
  nowadays society privacy is playing different societal role

• Today the concept of privacy is overwhelmingly becoming a
  sociological rather than a clearly-cut legal concept

• Although historically the human right to privacy has given
  birth to the concept of data protection, now legal regime of
  personal data protection claims its right to sui generis
  regime of its own, moving apart from the general concept
  of privacy

• Data protection is more useful and easy-to regulate as it is
  more legally defined concept

• On the other hand, it may pay tribute to non-legal
  constructs as efficacy, cost-orientation, networking effects
  and other social/economic perspective based aspects
  Law and Privacy – where the social background and
        individual values meet each other (II)

• Two regimes differ – data protection is necessary a
  compromise between principles of market-based economy
  (or public safety-related concerns), and traditional view to
  privacy, whereas human right to privacy is embedded on
  the opinio juris and general principles of international law
  and human rights

• However, one may not treat this approach as an attempt to
  downgrade privacy and its importance in society. Privacy is
  and will always remain key value to the democratic society

• The concern, which is raised here is how the law should
  interact with these changes in the way the society
  perceives its individuals, and vice-versa, individuals
  perceive each other and the society at large
  Human right to privacy and personal data protection
    regimes in the changing legal environment (I)

• Why sui generis data protection regime was necessary?

• The first data protection law in the world enacted in the
  Land of Hesse in Germany in 1970

• The Council of Europe's 1981 Convention ETS No. 108;
  1981 OECD Guidelines – describe personal information as
  data which are afforded protection at every step from
  collection through to storage and dissemination

• Data protection regime is about the right of data subject to
  control what is happening with his/her data. Data
  protection regime is no longer based on assumption that
  the personal data may not be collected otherwise than
  through consent of the individual – the law also
  presupposes other cases where such collection of personal
  data may be legitimate
  Human right to privacy and personal data protection
    regimes in the changing legal environment (II)

• Directive 95/46/EC serves as a regulatory framework for
  ensuring a balance between a high level of protection for
  individual privacy and the free movement of personal data
  within the European Union

• Directive 97/66/EC determines the processing of personal
  data and the protection of privacy in the
  telecommunications sector. However, it is already outdated

• Directive 2002/58/EC concerns the processing of personal
  data and the protection of privacy in the electronic
  communications sector replaces the Directive 97/66/EC
   Human right to privacy in the changing social and
           technological environment (I)

• Technology has changed the way the society perceives the
  balance between the right to know and the right to privacy

• Internet and modern technologies have become
  (accidentally or coincidentally) instigators for new type of
  social environment and new type of social rules

• New ways and modes of life are inevitably changing the
  very concept of privacy

• The right to information, the right to self-promotion is
  becoming more and more important
   Human right to privacy in the changing social and
           technological environment (II)

• Data protection regime is necessary a compromise based
  on assumption of active data subject, as opposed to
  passive individual for the purposes of ECHR Article 8, on
  collection of data as opposed to non-interference with the
  private life of individual under ECHR Article 8, on
  transmission of data as opposed to keeping secrecy and
  preserving autonomy
• Privacy is based on non-interference and non-surveillance,
  whereas pursuant to data protection laws collection of
  personal data is not necessary unlawful, provided, however,
  statutory requirements are met
• Data protection regime presupposes certain active steps to
  be made by the individual so that he himself decides
  whether he will provide the data for those particular
  purposes and whether he will interact with other society
  members. Thus, data protection is largely about choices
  and self-determination of individual himself/herself
Data Protection within Third Pillar – new era in modern
                  data protection (I)

• Historically, the data protection regime was about the
  balance between “usual” societal needs and business

• However, social, political changes (e.g. the threat of
  terrorism) and technological changes (e.g. development of
  electronic communications, including internet and its
  actors) necessitated the need for the different, brand new
  type of balance – between higher protection of privacy and
  security of public interests

• Third Pillar of EU may become even more controversial to
  concerns of privacy

• The retention of data as a subsequence of Third Pillar has
  opened the new page on the history of online privacy
 Data Protection within Third Third Pillar – new era in
             modern data protection (II)

• Directive 2006/24/EC – controversial piece of legislation
• Privacy-relevant aspects of the Directive 2006/24/EC:

   – operators shall be forced to take expensive measures in
     order to keep huge amounts of data
   – higher price for internet and related services
   – fewer possibilities for self-expression – various
     requirements for registration, authorisation of users

• The combat with terrorism may make the life much less
  convenient, but what is the real price we are paying for
  safer society?

• Third Pillar of EU reminds us of the price for the very
  concept of privacy. Unfortunately, in the hands of evil new
  technologies may become more dangerous to the society as
                 Big Brother watches you

• Nowadays people increasingly feel that someone is keeping
  a close watch on them. In the words of David Brin,
  darkness no longer offers even a promise of privacy
• The society does not expect absolute privacy anymore -
  cameras are on each corner of the street
• We should know that we are under surveillance, but we
  should have a possibility to monitor those who monitor us

• New social rule is tolerated: today much higher priority
  may be given to the security of society than to privacy

• From the perspective of a data subject the more important
  thing is to know what will happen with his data than the
  very fact that his data are collected and used
        What’s so special about the internet? (I)

• Internet content has become vaster than printed era
  production, or traditional media, audio-visual production.
  Internet has become the biggest, most powerful and
  ubiquitous printing, copying, media-creating, disseminating
  machine. Consumers are contributing to creation of public
  content to such an extent that traditional media production
  is relatively low output in comparison with the former

• New society is about making choices. The issue that in
  reality internet provides no real choices – users can’t
  choose internet without data mining and surveillance -
  merits a separate paper

• Privacy risks inherent in the use of cookies – novel modes
  of surveillance?

• In some cases, cookies may be useful for providing online
  services or to facilitate the surfing of the Internet user
        What’s so special about the internet? (II)

• “Spam” (unsolicited electronic junk or bulk mail) and
  related problems from the user’s point of view:

   – collection of one’s e-mail addresses without one’s
     consent or knowledge
   – receipt of large amounts of unwanted advertising
   – cost of connection time

• But is the spam so really different from “physical life” direct
Location data – one of the most sensitive areas of data

• A service provider should regularly remind individual that
  his terminal equipment has been, will be or can be located

• Processing location data cannot be justified where it is done
  for the purpose of surveillance

• Working Party Article 29 - the surveillance of employees
  may be justified for the purposes of planning operations in
  real time, or where a security objective is being pursued in
  relation to the employee himself or to the goods or vehicles
  in his charge
            Interplay with intellectual property

• Once again, we are talking about the balance - combat
  against illegal content vs. right to internet privacy

• Is Directive 2004/48/EC striking the right balance?

• Individuals are not protected from illegal internet content
  (starting from intellectual property right’s violations and
  ending with criminal offences) and illegal data surveillance

• A balance between the protection of privacy of society and
  protection of intellectual rights must be reached once again

• Whether our society in all cases justifies disclosure of
  personal data in order to protect the rights of intellectual
  rights holders?
 Do the surveys of public opinion reflect social reality?
• Public research for “Infobalt2000”: convenience and quick
  search as well as comfortable navigation in the internet was
  valued most by Lithuanian consumers by the end of 2000
  (60%). While the anonymity and security of personal data
  was deemed as a matter-of-course (54%)
• However, quite a big part of consumers (60%) was ready
  to choose convenience and quick searching services rather
  than privacy and personal data security. In addition, only
  few respondents determined privacy as a problematic
  aspect of the internet (7%)
• Two years later, in 2002, the majority of the respondents
  assumed that their personal data should not be public,
  however, less than 10% of respondents could determine
  who has a right to collect their personal data
• Thus, lack of information and public knowledge about data
  protection seemed to be the biggest problem in Lithuania in
  those days, although situation changes to the better now
  Do the surveys of public opinion reflect social reality

• Eurobarometer survey (Special Eurobarometer 196):

   – Around 64% of EU15 citizens polled tended to agree that they were
     worried about leaving personal information, such as their name,
     address, date of birth on the Internet. In a technological extension to
     the telephone monitoring question, the issue of monitoring Internet
     use was reviewed. The main response from 40% of polled was that
     monitoring should only take place on those suspected of terrorist
   – There was less support for the rights of the individual when related
     to the Internet than the telephone and, accordingly, only 25% of the
     EU15 considered this to be the stance that should be taken

• May we say that the public polls may imply that new technologies
  (internet) bring more possibilities to society, and expectations of
  society are changing? May it be suggested that the right to
  information, right to self–promotion is becoming more important
  than privacy? May the results show that people do not refuse to
  stay anonymous, but they do not expect privacy anymore?
         Direct marketing – different perspective

• Business perceives the personal data on consumers as the
  tool for business activities or as economic good/commodity
• Most of consumers treat their data as belonging to them,
  although in case of economic benefit gain most of the users
  may tend to disclose their data or relinquish of their rights
  to privacy. Bonuses, promotion, offers, individualized or
  customized solutions may not be effectively conveyed
  without the knowledge of the customers and its data
• Thus, why it should be anybody else than the consumer,
  who shall decide which value is more important and
  valuable for him/her – bonus, discount, information about
  the new product, or his right to be left alone?
• Using of personal data may in the end mean that the
  consumers are better served, provided with more new,
  individualized and better quality products, new
  opportunities to participate in the consumption?
                       Conclusions (I)

• New technologies have vested the society with new
  instruments and made individuals’ lives more convenient.
  The society has happily accepted those. Evolution of
  technologies and social life enhanced individuals to access
  to information and knowledge; thus it constantly leads to a
  situation when members of society recognize the right to
  know, right to communicate, right to express views and
  contribute to the society as a more vital and valuable than
  the right to be let alone

• Of course, in the hands of evil new technologies may
  become more dangerous to the society as before. That’s
  why the price we are paying is, inter alia, our privacy (Third
  Pillar of EU)
                     Conclusions (II)

• New technologies are transforming our lives and even the
  concept of the right to have or expect privacy. Personal
  data protection regime implies more active participation of
  the data subject in the societal relationships

• Modern life is about preferences, choices and self-
  determination, therefore if the individual does not want to
  be disturbed or interfered or otherwise approached, he is
  free to choose or opt out of such intrusive events

• Individual is already required to MAKE A CHOICE. Thus,
  individuals, no more expect the absolute privacy on the
  internet; what they are concerned is what will happen with
  their data collected on the internet (cookies, financial
  information, etc.)
                      Conclusions (III)

• At least conceptually data protection regime is more tailor-
  made and more suitable for internet and other
  technologies, which also reside on the premise of self-
  determination and choice, rather than on isolation

• Of course, we may not place efficacy ahead of justice,
  economy ahead of human rights. Privacy was always about
  the carefully sought balance. Privacy will always remain key
  value in democratic society

• However, the very idea of privacy resembles the ever-
  green vitality of each democratic society. Legally speaking,
  it is hardly possible to enforce the system which is difficult
  to define. Furthermore, the idea of privacy, as a very
  general idea, may act as a paramount check and balance
  mechanism, ready for action in those cases, where rule of
  law (data protection regime, etc.) is at flaw
Thank you for your attention!

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