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 !