Back to Basics: Privacy Ethics (part 2)

So, let's continue the journey through the 'what and why' of privacy. The second argument that Jeroen van den Hoven makes in his contribution Information Technology, Privacy and the Protection of Personal Data is that 'identity relevant information' should be protected, not any data about people (see: Van den Hoven/Weckert (e.d): Information Technology and Moral Philosophy, Cambridge University Press 2008).

Argument number 2: The scope of data protection should cover 'identity relevant information'.

Van den Hoven argues that the European definition of personal data is referential. In order to be 'personal data', the data need to be about a specific person, not just any person. This means that personal data need an identity-relevant context, regardless whether the context is right or wrong. Without such context data have no meaning and are just attributive: they would describe a situation or fact without reference to any specific individual. One could also argue that attributive data are conditional; they only become personal data if another identity-relevant condition occurs, for instance because the raw data is placed in an identity-relevant context or is combined with another piece of identity relevant information.

Because of the narrow definition of personal data in the European Data Protection Directive 95/46/EC, Van den Hoven concludes that attributive data go unprotected, but may very well be used to harm people with the assistance of new technologies such as data mining, profiling, etc. The Article 29 Working Party has recently tried to protect attributive data by dramatically extending the definition of personal data to data that are only conditionally identifiable. The most striking example of this extention to attributive data is example 16 about a collection of graffiti paintings in its Opinion on the Concept of Personal Data (Opinion 4/2007, WP136).

However, this opinion of the Article 29 Working Party has serious consequences. Data protection law does not only tells us what should be protected and why, but also how. It is the 'how' where the problem lies, especially in the case of attributive data. By bringing attributive data under the protection of the Data Protection Directive, all the formalities that come with this protection regime, like notifications, privacy notices, data export restrictions, prior checking, etc, are also triggered.

The argument for bringing attributive data under the protection of the Data Protection Directive is that the Working Party [quote]"assumes that the data controller or any other person has the means likely reasonably to be used to identify the data subject" [unquote]. In other words, there is probably always somebody somewhere who can re-attach an identity-relevant context to what -for most of us- is only meaningless information. For this very reason, some Data Protection Authorities in Europe do not consider key-coded data to be anonymous.....: if somebody has the key, he or she can always apply an identity-relevant context to the coded data, and therefore such coded data should be considered 'personal data' and treated in full compliance with the Directive.

The same argument is used to bring dynamic IP-addresses under the full protection of the Directive; the Internet Service Provider can always find out who was using a particular IP-address at a particular time. The fact that the government has given itself broad powers to collect information from private databases and to combine this information with other information, is the main argument for the position that electronic footprints, such as leaving an IP-address when visiting a website, are never completely anonymous and should thus be protected by the data protection laws.

This argument directly impacts businesses that collect attributive information to improve their products and services. They don't care who made the "electronic footprints" that their customers leave behind. As long as they have no intention of sharing this information with other parties or to use the data to harm their customers, there is little privacy risk for such data.

And here we uncover the key issue in the underlying ethical and legal debate that is currently going on. As soon as a piece of information about a person is disclosed, the privacy of that piece of information is -in principle- lost forever (see also Van den Hoven). If the party that holds that piece information does not know to whom that piece of information belongs and has no intention of ever finding it out, the likely impact on the privacy of that person -now and in the future- is close to zero. It is a 'footprint' made by 'somebody'.

However, the very fact that another party, most notably the government, can force the keeper of attributive data to release the data, triggers the slumbering privacy risk. This third party may be able to attach identity-relevant information to the otherwise anonymous data. This could be done by various means, such as forcing the disclosure of the key to unlock the data, pattern recognition and data mining, or combining various pieces of data with identity-relevant information that is already in the database. According to Van den Hoven such information is then used in another "sphere of access". It is the crossing into that other sphere where the slumbering privacy issue comes to the surface.

So, the moral problem that is presented here is: Should people's "footprints" that are only attributive be protected ?

My answer to that question is a affirmative "Yes", for the simple reason that the slumbering privacy risk may reveal itself at any time, any place, sometimes intentionally, but very often by accident. Therefore, people who have access to the "footprints" of other people, should be careful as to what part of this information to reveal to the outside world, because they have no way of knowing whether the data may have identity-relevant meaning to others. Speaking "hypothetically" about a real case with strangers at a party, or putting your holiday pictures of strangers on the Internet, could be a risk to privacy and should therefore be avoided.

BUT, unlike the Article 29 Working Party, I don't think that it is necessary to bring such data under the scope of the Data Protection Directive by default. They could very well be protected by criminal law or civil/tort law, so as to address any harm that is inflicted on the individual by the misuse of these data. Where somebody intentionally or accidentally has revealed such "footprints" to other people, and by doing so has brought such data outside the original "sphere of access", the victim may very well have a valid claim on that person for violation of privacy, if this piece of information is later used to harm that person. But bringing ALL attributive footprints within the scope of data protection legislation is one big step too far.

Back to Basics: Privacy Ethics (part 1)

When I am writing this, it is May 5th, Liberation Day in Holland. On this day Holland reflects on its freedom by organizing "freedom festivals" with music, dance, and theatre performances. Each festival has a Freedom Fire, which has been lit in Wageningen, the place where the Nazi occupation in Holland was officially ended. So-called "Embassadors of Freedom" tour the festivals to talk about freedom, human rights, and the effects of war and violence. So, this looks like a perfect day to reflect on the ethics of privacy and the moral foundations of our privacy laws and freedoms in Europe..... Back to Basics - part 1.

Yesterday, May 4th, Remembrance Day, Peter Hustinx -the European Data Protection Supervisor- was interviewed in a Dutch political talkshow Buitenhof about privacy and the foundations of freedom in Europe. He did a good job. He talked about the "haystacks" that Europe is building and the little chance that somebody may ever find a needle in them. And he warned against the speed with which those haystacks were established and the lack of adequate protections for the rights of European citizens. Moreover, he warned for the dangerously blind trust in information technology: that it will always pick out the bad guys and that nothing ever will go wrong with the data and the profiles stored in those databases. When asked who is making sure that the proper protections are put in place, Hustinx referred to the European Parliament that will get co-legislative powers on crime-fighting issues on January 1, 2009, when the new European Treaty will come into effect.

However, a word of caution is justified here. The "problem" with the belief that everything will be better once the European Parliament has something to say about privacy rights in crimefighting is that the Parliament is driven by politics. This means that privacy protection will be a mix of short-term political opportunities and the political and moral views of the MEP's on how society should be shaped.

On that note, I would like to draw your attention to the excellent work of Jeroen van den Hoven, professor in ICT ethics at Delft University. He has written extensively about the moral reasons for privacy and data protection. I warmly recommend to read his contribution Information Technology, Privacy and the Protection of Personal Data in Jeroen van den Hoven/John Weckert (e.d): Information Technology and Moral Philosophy (Cambridge University Press 2008). In this mini-series on Privacy Ethics I will summarize and comment on his work:

• Thesis #1: In modern society, there are basically two main views on privacy and data protection: Liberalism and Communitarianism.

On the one end of the spectrum, there is the Liberal view of individual rights and freedoms. In this view, the exercise of people's freedoms is limited by the freedoms of others (see also John Stuart Mill's "Harm Principle"). Privacy and personal freedom is thus very large, and state interference with personal life is limited.

On the other end of the spectrum, there is the Communitarian view of the community's norms and values that can be forced upon the group members, and the need to deal with 'free riders' in our society. In this view, information about people should be made available to the state in order to identify the 'free riders', people that enjoy the benefits of society without participating in the activities that produce those benefits, such as criminals, tax evaders, etc.

The problem for privacy protection is evident. The two views are hardly reconcilable with each other, although Van den Hoven makes a decent effort in his article. Furthermore, in this day and age, Liberal views on personal freedoms are not very popular around officials in government circles. Many take the view that modern society has become too complex to allow Liberal freedoms to prosper unconditionally. Especially where the boundaries between the public and the private sphere vanish, it becomes more difficult to justify the unconditional exercise of personal freedoms. Also, the increased focus on combatting crime and terrorism puts pressure on the Liberal view on privacy and personal freedoms. Nevertheless, Liberals such as MEP Sophie In 't Veld continue to question policies, powers, programs and systems which are put in place by the government that impact people's privacy and keep asking for protections to be put in place to prevent misuse of data and infliction of information-based harm to individuals.

On the other hand, the Communitarian views on privacy and freedom are not always acceptable either, especially not when people are confronted with norms and values of society (or of the group that they belong to) that they don't share personally. The contemporary communitarian thinker Amatai Etzioni has even defended the burqa for muslim women by suggesting that privacy could be seen as an obligation to the group or society to keep certain parts of personal life private if society or the group beliefs it should be kept private. Personal beliefs, norms and values are thus overridden by the norms, values, and needs of society or the group, the 'common good' (Etzioni, 2004).

Communitarian proposals, ideas and actions are relatively easy to spot. They are typically justified by pointing to the obvious benefits for society. Most of the 'haystacks' that Hustinx referred to in the interview have communitarian characteristics. The fact that these proposals do not from the start take into consideration the protections for the privacy and fundamental rights of citizens ("privacy by design") is an even stronger indication of their communatarian origin. Examples of such proposals include: the pan-European fingerprint database proposed by Euro-Commissioner Frattini, the pan-European system of DNA databases proposed by the German Minister for Interior Wolfgang Schäuble; the Electronic Child File with data about the development of all Dutch children and their families in order to screen for child abuse and government-funded assistance to parents for bringing up their children, proposed by André Rouvoet, the Dutch Minister for Youth and Family Affairs; or the affair in Italy just last week, when the Italian Deputy-Minister of Finance Vincenzo Visco ordered the tax data of all Italians to be published on the Internet in a bid to improve tax transparency and combat tax evasion.

Which opinion, the Liberal or the Communitarian one, is dominant in the European Parliament at the moment the voting takes place, significantly defines the nature of the protections that Hustinx and others are hoping for. For now, things seem to look fine for the privacy camp, as the Parliament is very critical about the proposals that are put forward by the Council. Question is however.... is the Parliament critical because of real concern for the privacy of European citizens? Or is the Parliament critical only because it does not like the fact that new proposals are speedily adopted by the Council, before the deadline of January 1, 2009 ......? We will see after January 1st !

Privacy: Who's Problem Is It ?

Last week, I was interviewed by a professor who was researching the 'economics of privacy'. He wanted to know why organizations invest in privacy protection. Are there economic drivers for establishing privacy policies? Or is privacy just a 'Lawyers Paradise'?

It is an interesting question. In her PhD-thesis, professor Overkleeft -a Dutch law professor- stated that "privacy is a mandarin science" (G. Overkleeft-Verburg, De Wet Persoonsregistraties; Norm, Toepassing en Evaluatie, 1995). What she meant with that remark is, that there are only a handful of people (lawyers, commissioners, academics) who are privvy to the details of privacy theory and privacy practice. For everybody else, privacy is just a vague feeling, a buzz word, that is often misunderstood and sometimes misused or inappropriately applied. More than 10 years later, it is a safe bet that privacy still is a Mandarin science.... at least, in Europe.

In Europe, privacy is considered a fundamental right, which is laid down accordingly in the EU Charter of Fundamental Rights. But Europe's fundamental problem is its inability to turn the fundamental right of privacy into a people's issue. Europe claims that it has the best privacy laws in the world. Or at least, the eurocrats in Brussels and the Data Protection Authorities in Europe think so. This belief is even enshrined in article 25 of Directive 95/46. The "Digital Fortress Europe"-rule prohibits data export to countries that do not have an "adequate level of protection". Europe fiercely protects the personal data of its citizens, both in Europe and abroad. But in Europe's streets nobody knows those laws, and worse..... hardly anybody cares. The bureaucrats have reduced privacy protection to a legal compliance problem. For the average man, it is hardly an issue. But in the Information Age, privacy should be a matter of concern to everybody, not only to a "happy few", such as the data protection authorities, the lawyers, and a handful of privacy-rights activists. Privacy should not be something driven by law and supervisory authorities, but something driven by internal values of organizations and governements and the need to earn the trust of their stakeholders. Privacy should be something that people care about.

Take for instance The Netherlands. There are no privacy rights groups anymore. Bits of Freedom, a small Dutch digital rights movement, decided to liquidate itself a few years ago. Even worse, the "Dutch People" got the Big Brother Award 2007 because of their lack of interest in privacy. The average Dutchman likes to say that he has "nothing to hide (except his PIN-code)". On the other hand, there are plenty of law firms around that have some sort of a privacy practice. And an increasing number of organizations, companies as well as government agencies, are appointing privacy officers, or have some other form of in-house privacy expertise.

So, the professor's question seems to be a valid one. WHY do organizations invest in privacy if their stakeholders don't seem to care much about it? The answer is probably a complex one. Some organizations seem to have a privacy progam because they want to be seen as acting responsibly towards society. They invest in privacy because of their internal values. For others, it is an issue that they think may give them a comptetitive edge in the market. They invest in privacy to win, but are probably willing to drop it, if it doesn't pay off. And for many others it is just a matter of compliance with a set of very difficult and vague laws, and they do their best to be compliant. They invest in privacy because of risk avoidance and legal compliance.
However, I am also afraid that for most organizations it is just another law with which they -consciously or unconsciously- do not to comply. They don't invest in privacy simply because their stakeholders -internal or external- don't care about it. So why bother....?

So what did I tell the professor in the end? I told him that as long as we don't have good privacy metrics that enable us to show how much organizations lose if they don't protect the privacy of their customers and employees (either in actual cost, in opportunity cost or in lost sales because of lack of trust), the primary reason for investing in privacy is legal compliance and avoidance of legal risk. As long as people remain indifferent about their privacy, there will be no incentive to invest in stronger privacy protection in organizations. Thus, privacy will remain the problem of the legal department. It is seen as a cost rather than a benefit.

When we think of how to shape Privacy 2.0 in the 21st century, we also have to figure out how to make privacy a people's issue.

Rethinking Privacy 1.0

Ever since the OECD published its Privacy Principles in 1980, the privacy laws around the world have been focussing primarily on protecting personal data in databases. And all those years the fundamentals of privacy have remained the same. The European Data Protection Directive 95/46, which allows personal data to move across borders in Europe, came into force 15 years after the OECD Privacy Principles on which it is based were published, but meanwhile the world had already changed: the Internet had arrived! Only 8 years after the Directive was introduced, on November 6, 2003, the European Court of Justice -Europe's highest court- was confronted with this change in its only second ever case under the Data Protection Directive: Lindqvist vs. Sweden. This case demonstrated the built-in weakness of the European system of data protection: despite the EU's claim to the contrary, the Directive proved to be not very technology-neutral, and therefore not very future-proof. The various actors in the Lindqvist-case, such as the Advocate-General and the Member States, tried to do their best to get a legal grip on the facts while trying to preserve the essential elements of the Directive, but eventually the Court reached a surprising and far-reaching conclusion: posting personal data on the Internet, despite the fact that everybody around the world with an internet connection could potentially read the information, does NOT violate one of the key-elements of the Directive: the international data transfer rules...!

A second example of my view that today's law is not technology-neutral is Directive 2002/58, a.k.a. the e-Privacy Directive, which specifically addresses privacy in electronic communications. The very first version of this Directive was published in 1997, but already in 2002, it got a complete overhaul. And only 6 years later, the EU is putting Directive 2002/58 up for discussion again, as it is -among other things- trying to address the privacy concerns around Radio Frequency Identification (RFID) technology. So what's next? Bluetooth? GPS? WiMAX? Ubiquitous Computing? Body Area Networks?

In the meantime, governments are trying to broaden their powers to collect information about their citizens and non-citizens in order to prevent terrorism and to combat crime. This is creating a disconnect between the private sector and the public sector, and creates a false impression with the public. Strict privacy rules for the private sector (where privacy risk is relatively low) versus weak privacy rules for the government gives the impression that the private sector cannot be trusted. Which is strange, considering the fact that getting and keeping customer trust is a basic element of doing business for the private sector. Screw your customers and you are out-of-business in no time. On the other hand, weak privacy rules in the public sector is especially damaging if inaccurate or incomplete information is rapidly shared between government agencies or when information is used out-of-context. But such weak privacy rules give the citizen the false impression that governments have such risks under control. George Orwell's "Big Brother" state may not have arrived eyt, but "Little Sister" is already here, and she brought her whole family...!!

We need to rethink privacy in the 21st century!
The world has changed since the OECD introduced its Privacy Principles in 1980. What does privacy mean for us if at the same time we want no terrorism, less crime, better and personalized services, and more convenience? How do we protect privacy in a world that becomes ever more globalized, so our data end up in data systems on the other side of the world? What does privacy mean for people who come from different cultures and backgrounds? How do we protect our privacy if computers, sensors and communication devices become invisible and ubiquitous? How can we build trust into the technologies that we use? How do we make ourselves feel protected against the risk of identity theft and malicious attacks on our private life? And how do we protect the privacy of people who are vulnerable, such as elderly, minors and mentally handicapped, in an inclusive Information Society?

Unlike some other people, I am not saying that privacy is dead. Or that it is an illusion in the Information Age in which we live. No, I am saying that we have to go back to the privacy drawing board, re-define the privacy principles for the 21st century, and come up with a new set of privacy principles that fit the new realities of our global society and which are robust enough to survive technological and social change. Principles that enhance trust with consumers and citizens, stimulate innovation and societal development, and protect democratic principles and the rule of law. What we need is Privacy 2.0 !

All this and more is the main topic of this blog. I welcome you to comment on my thoughts, so we can get a global discussion started how to protect privacy in the 30 years to come.