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

An individual’s “personal data” provide the input (or material) that makes it possible to
take advantage of the person’s presence to engage him or her as a consumer. In this
case, the decontextualisation and recontextualisation of personal data happens on the
spot in a single move.
An individual’s “personal data” provide the input (or material) that makes it
possible to take advantage of the person’s presence to engage him or her
as a consumer.
The point to note is how seemingly irrelevant the public–private divide appears to have
become in all this. How much does it matter whether Google or the French government
supplies ambient advertising? Similarly, if the state contracts out surveillance to private
companies, is that any different from contracting out prison management or espionage?
The model presents a public sector whose primary role is to facilitate and promote the
private (much as Habermas described in Chapter 1).
Yet, on inspection, this “private” is emptied of much of the content of the idea of the
“private individual”, while little remains of the idea of public interest that was supposed
to emerge from the public sphere. Much as Habermas feared in the strongly worded
warning that takes up the second part of Structural Transformation, 215 the “private”
appears to stand in for the private sector and for relatively powerful private interests,
and the blurring of public and private here merely indicates that the notion of public
interest has been conflated with, and narrowed to, that of market.
What are the implications for human rights? As ever, human rights law has little to
say about the encroachment of ambient commodification, the ubiquity of a consumer
society, or the uneven distributions resulting from the market. At present, where human
rights groups appear at all in these debates it tends to be in defence of the freedom
of expression of private (commercial) parties, on one hand, and in favour of voluntary
privacy codes regarding private (consumer) persons, on the other. 216 If a more engaged
role for human rights advocates is imaginable, but its contours are difficult to discern at
present. This is an area in need of further research.
As ever, human rights law has little to say about the encroachment of
ambient commodification, the ubiquity of a consumer society, or the uneven
distributions resulting from the market.
Transnational Law?
The governance of information technology is best viewed as an intrinsically transnational
affair. What does “transnational” mean, as distinct from international? Primarily it means
that national borders do not appear to be the principal organising architecture of a
phenomenon that nevertheless manifests across borders. This is true not only of the
phenomenon itself, but also of its governance.
As with any commercial endeavour, information technology is solidly supported by a
body of law, but in its cross-border aspect, relatively little of the relevant law belongs to
215 See Part 2 of Habermas (1992); see generally Andrejevic (2009).
216 In this regard, see the Principles on Freedom of Expression and Privacy issued by the Global Network
Initiative in 2008. At: www.globalnetworkinitiative.org.
68 Navigating the Dataverse: Privacy, Technology, Human Rights