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

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-
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