Title: RELATED FINDINGS FROM FIDIS D7.7

Introduction

In this section we will summarise the findings of D7.7 (RFID, Ambient Intelligence and profiling) related to the legal aspects of the problem space, while in chapter 6 we will explain some of the work in progress in D7.9 (Ambient Law) as one approach to privacy-enhancements. Ambient Law (AmL) has been suggested as a solution to some of the problems encountered in the legal section of D7.3 (Actual and Possible Profiling Techniques in the Field of Ambient Intelligence). AmL aims to improve the effectiveness of legal norms concerning data protection, privacy, fairness and due process while at the same time providing democratic legitimisation for the use of technologies that may entail a new ‘enforceability’ . Ambient law can provisionally be defined as:

the embodiment of legal rules in the emerging technologies they aim to regulate. 

To explain the ratio behind AmL we need to briefly trace the relationship between privacy, democracy and the rule of law. In a constitutional democracy privacy is not just a private good that can be traded at will, but also an important public good that empowers citizens to develop and sustain the boundaries of the self in constant negotiation with his personal, social and material environment. If we follow the working definition of privacy can be defined as:

the freedom from unreasonable constraints on the construction of one’s own identity. 

Privacy as such, is never a given, pre-existent fact of life, but always a fact that has to be created by means of institutional arrangements and interactional processes. It cannot be taken for granted. Emerging technologies like RFID change the fabric of the environment in which we create and maintain our boundaries, requiring an update of the institutional arrangements that protect the identity-building processes that sustain our humanity. For many centuries law has articulated itself in the written and printed script, empowered and constraint by the possibilities generated by writing and printing. Facing the digitalisation of our environment law may need partial re-articulation in the technologies that mediate our everyday life. The reach of the written or printed word is limited and administrative laws like data protection legislation seem paralysed and retarded in confrontation with real time monitoring of the type enabled by RFID systems.  

AmL should provide more adequate means to combine the legitimacy of legal protection with its effectiveness. As machine to machine (M2M) communication technologies may provide a new enforceability, not available to written law, such enforceability needs the legitimisation of democratically generated legislation (instead of categorising it as neutral means of implementation), while at the same time data protection legislation needs to augment its enforceability (effectiveness) in the age of real time exchange of data.