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

is central and inevitably intersubjective. 130 To speak of communicative control, however,
also focuses on notions of autonomy and intentionality. It assumes that “information”
carries value – that it is not merely free-floating signification. To be a private autonomous
person, then, would be to have the capacity to set a value on information concerning the
self – to decide what it means – before it is launched into the dataverse.
Privacy implies relationships with others: whether we think of these others as
neighbours, friends, family, “society”, the “public” or the state, the negotiation
of those relationships is central and inevitably intersubjective.
The Discussion Paper has questioned the principles underlying common ideas about
privacy. Following Dean, it suggests that technoculture materialises the public sphere:
private persons are represented in this public space in the form of digital doubles
or “dividuals” with data images or “surveillant identities”. Our digital profiles exist in
cyberspace, just as they do in government and marketing databases, and although we
may be able to tweak certain elements of the information circulating about us, it seems
unlikely that we will ever be in a position to determine what form our “dividual” should
take or limit just how much and what kind of information it should encompass. Ultimately
our “dividual” has a life of its own, and we may not even know its full parameters. This
too is, inevitably, a source of anxiety.
Yet, if privacy is indeed a public good, we should expect public and legal protections
against such outcomes. If there is a right to privacy, that must surely mean at minimum
that we retain some basic control over our digital selves. A cursory reading of the EU
Data Protection Directive would appear to support such a view, as we shall see in a
moment. Since the “dividual” has real-world consequences, it is here that the body of
laws intended to protect privacy should be most relevant. Let us examine the relevant
law with that in mind, beginning with the United States and then turning to the right to
privacy and data protection, respectively, in Europe.
Since the “dividual” has real-world consequences, it is here that the body of
laws intended to protect privacy should be most relevant.
The United States: a “Reasonable Expectation of Privacy”
The right to privacy has had a difficult history, uncertain status, and a dose of transatlantic
schizophrenia. In the United States it has a very clear genealogy dating from an 1890 law
review article by two legal scholars, Samuel Warren and Louis Brandeis. 131 Much later,
as a Supreme Court judge in 1928, Brandeis gave that earlier idea constitutional legs
in a strongly-worded dissent to a ruling on wiretapping, Olmstead v. United States. 132
The essence of Brandeis’s famously broad intervention was that privacy rights extend
beyond property controls alone. It was finally adopted by the Court in 1965 in a case
(Griswold v. Connecticut) that concerned a married couple’s use of contraceptives. 133
130 On privacy as the negotiation of interpersonal relationships, see Irwin Altman, “Privacy Regulation:
Culturally Universal or Culturally Specific”, Journal of Social Issues (1977); Leysia Palen and Paul Dourish,
“Unpacking “Privacy” for a Networked World”, CHI (2003).
131 Samuel Warren and Louis Brandies, “The Right to Privacy” 4, Harvard Law Review 193 (1890). For one of
many versions of this history, see Gerety (1977).
132 Olmstead v. United States, 277, U.S. 438, 455–56 (1928). [Telephone lines are owned by the phone
company and not the individual: tapping is therefore not a breach of the individual’s right.]
133 Griswold v. Connecticut, 318 U.S. 479 (1965).
46 Navigating the Dataverse: Privacy, Technology, Human Rights