Navigating the Dataverse: Privacy, Technology ... - The ICHRP

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▪ Human rights organisations can nevertheless push to further refine the existing tools, in particular through privacy and non-discrimination suits (in the context of profiling) and freedom of information requests. Targeted campaigns in these domains will not only clarify the limits of the existing human rights framework, but will additionally provide a clear platform for further advocacy where improvements and reforms are needed. These recommendations involve thinking laterally and acting with a view to the longterm. The dataverse, after all, is here to stay. It behoves us to ensure that our human rights tools are a match for this extraordinary challenge. vi Navigating the Dataverse: Privacy, Technology, Human Rights
A Note on the Text This Discussion Paper examines the human rights implications of the diffusion of datagathering technologies across the world in recent years. It starts from the premise that the relevant issues, while much discussed, are not yet well understood and are evolving rapidly, both of which contribute to widespread anxiety. The Discussion Paper explores the roots of this anxiety and attempts to determine its sources and effects. It queries the degree to which data-gathering technologies pose problems that represent (or are analogous to) human rights threats and asks whether and how human rights law may help to assess or address those problems. Following a prolonged research period, writing on the present Discussion Paper began in June 2010, at a time when the privacy-technology debate was already fizzing. In the year between then and its finalisation in May 2011, the debate on technology and human rights took on significant new dimensions, notably following the series of uprisings that have come to be referred to as the “Arab Spring”. It is too early to draw any conclusions from those events, and this Discussion Paper does not attempt to do so. The Arab Spring and the mixed responses it has evoked do, however, draw a spotlight to a number of questions with which the present Discussion Paper is concerned at the interface of human rights, technology and privacy. The Discussion Paper approaches the topic from a distance and circles in towards the specific concerns most frequently voiced in public discussion. Chapters 1 through 3 are predominantly theoretical. We discuss theoretical concerns in some detail in order to avoid the reflexive fear that surveillance technology often raises for human rights advocates, to capture the novelty and specificity of contemporary anxiety about privacy and technology and so to provide a solid platform for further analysis. Chapters 4 through 6 are comparatively empirical: they juxtapose perceived problems alongside existing national and international legal architectures in order to raise questions and identify gaps. Among the Discussion Paper’s overarching aims is a reassessment of the notion of privacy itself, under current conditions. With this in view, it goes over ground that will already be familiar to some readers. This may be especially true of the discussion of Jürgen Habermas’s work in Chapter 1. Habermas’s account of the public sphere has proved extremely influential; yet its potential to enrich our understanding of privacy has rarely been fully explored. It therefore seemed useful to lay out his approach in some detail, because it provides perhaps the most thorough account available of the historical conditions for the emergence of privacy in its modern form, of the assumptions that underlie it, and of its normative function in liberal states. The discussion of Michel Foucault’s work in Chapter 3 will similarly be familiar to some readers, although here we move away from the familiar focus on the “panopticon” to capture his broader work on “security”. The relevant bodies of law (the “right to privacy” at national and international level, data protection legislation where it exists, “cyberlaw”, human rights law, the laws that govern information and telecommunications, surveillance and espionage, and so on) are addressed in Chapters 4 through 6. Whereas the report aims at a preliminary assessment of their applications and shortcomings, it does not claim to provide a comprehensive overview of these bodies of law. Since the Discussion Paper is intended to provide a platform for further research, there are a number of other things it does not do. It draws on numerous examples of data- Navigating the Dataverse: Privacy, Technology, Human Rights vii
Page 1 and 2: Navigating the Dataverse Privacy, T
Page 3 and 4: Navigating the Dataverse: Privacy,
Page 5 and 6: Navigating the Dataverse: Privacy,
Page 7 and 8: Contents Acknowledgements Executive
Page 9: Acknowledgements This Discussion Pa
Page 12 and 13: As to the first, the Discussion Pap
Page 14 and 15: contesting profiles so long as cert
Page 18 and 19: gathering technologies as illustrat
Page 20 and 21: information is extensively gathered
Page 22 and 23: themselves were reproduced in onlin
Page 25 and 26: I. A Short History of Privacy Altho
Page 27 and 28: property. 20 This establishes the l
Page 29 and 30: Privacy must be viewed as an ideal
Page 31 and 32: During the 1980s, partly as a resul
Page 33 and 34: e removed merely by an effort of cl
Page 35 and 36: II. The Privacy-Technology Dynamic
Page 37 and 38: dataverse. Not only are there many
Page 39 and 40: internet, when it arrived shortly t
Page 41 and 42: simply are not - they don’t exist
Page 43 and 44: III. Security and Surveillance Havi
Page 45 and 46: When we talk about state surveillan
Page 47 and 48: stimulation of economic activity. S
Page 49 and 50: Digital Personhood How should we th
Page 51 and 52: Identity is therefore unitary and a
Page 53 and 54: IV. Privacy across Borders: Persona
Page 55 and 56: Where research on communications an
Page 57 and 58: The Expanding Dataverse Biometric I
Page 59 and 60: peoples of most countries, enormous
Page 61 and 62: Such protections do not shield indi
Page 63 and 64: V. Law, Privacy, Profiling This Dis
Page 65 and 66: Griswold set the pattern for one br
Page 67 and 68:
terrorist”. 144 In Posner’s vie
Page 69 and 70:
ut it has not so far accepted that
Page 71 and 72:
2. The Court turned to the practice
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normative statements on the substan
Page 75 and 76:
individual may have multiple profil
Page 77 and 78:
Let’s take another example: “ri
Page 79 and 80:
VI. Boundaries and Borders We have
Page 81 and 82:
process” to empirical research in
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As a result, communicational pruden
Page 85 and 86:
Business School: “The amount of p
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the domain of international law. In
Page 89 and 90:
A U.S. Secret Service liaison poste
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examples to the experience of a sho
Page 93 and 94:
Conclusion This Discussion Paper ha
Page 95:
The rise of contemporary data harve
Page 100:
This ICHRP Discussion Paper examine
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