D7.4: Implications of profiling practices on democracy

Title: PRIVACY AND DATA PROTECTION

Tools of transparency and tools of opacity

As Gutwirth and De Hert opine above  the law has two types of legal instruments to deal with issues of privacy and the exchange of information. Tools of transparency start from the default position that information can be observed, recorded, aggregated and maybe also processed, on the condition that certain constraints are implemented that should make the process of data processing transparent (or at least give citizens the tools to demand transparency). One could say that these tools demonstrate the constitutive and restrictive aspects of the law in constitutional democracy: the law creates the competence or right to process information while at the same time limiting this right or competence. Tools of opacity seem to start from the opposite default position, which means that access is prohibited and/or information shielded, while at the same time the possibility is created to grant access or obtain information, for instance if this is necessary in a democratic society and in accordance with the law (art. 8 par. 2 European Convention of Human Rights, ECHR). Again we see that the law creates rights – to be left alone, to remain invisible – while simultaneously limiting these rights.

Contrary to Gutwirth and De Hert, I do not consider it adequate to oppose privacy rights as tools of opacity versus data protection as a tool of transparency. I agree that privacy rights are opacity tools that institute prohibition as the default position, whilst data protection seems to permit the transparency of both individuals and the process of data collection. However, we should keep in mind they are both intended to protect privacy (see for instance D95/46 EC, art. 1 sub 1). Legally privacy is not a right but a good that is protected by certain rights and obligations. When speaking of privacy and data protection I will take it that privacy is the good that is the object of legal protection by means of (1) criminalisation of violations thereof; (2) an individual right to private life and (3) data protection legislation. I will now analyse the relationships between privacy, privacy rights and data protection in relation to the distinction between legal instruments of opacity and transparency.