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D7.4: Implications of profiling practices on democracy

The default positions: privacy as an opacity tool and data protection as a transparency tool  Title:
 The existing legal framework of privacy and data protection


Combining the tools

In other words, the default position of data protection is transparency, but it also provides for opacity rules, e.g. when sensitive data are at hand. Inversely, the default position of privacy is opacity, but it also can allow for transparency rules, e.g. when telephone tapping is allowed under strict conditions (by legal regulation, for certain incriminations, limited in time, with control of police, etc.) This shows that opacity and transparency tools pre-suppose each other. Which of course is understandable: they were conceived simultaneously, at the historical moment of the conceptual birth of the democratic constitutional state, both with the aim of contributing to the control of power. They are each other’s alternative : it is either the one or the other.  


Hence, it is up to the legislators and policymakers to consider both tools and to identify the kind of tools necessary for a given problem, especially with regards to technological developments. How much of what tool is necessary and when? Channelling power in the mist is doomed to fail; limits and points of departure are necessary. Transparency tools alone cannot, therefore, be enough. But approaching new phenomena with heavy prohibitions may circumvent the legitimate interest of the state or block potentially interesting developments, for example, with regard to the use of new technology. It may also lead to a situation in which the prohibitions are not respected. This would leave power relations uncontrolled, due to the lack of tools. Hence, an approach based only on opacity tools should also be considered with due care. The question then becomes how to combine the tools appropriately.


Of course, such an approach raises the question of the application of the distinct tools to (new) developments and techniques. When will opacity be called upon, when will transparency apply? How to choose between a opacity approach (proscriptive rules that limit or ‘stop’ power) and a data transparency approach (regulations that channel power and make it conditional and accountable) ?  

To raise the question as to what should be protected through opacity what through transparency tools is, in fact, putting another question: what is, in a democratic constitutional society, so essential that it must be, as a rule, shielded from interference by others (public and private actors)? Which aspects of individual life in an open society must be protected against visibility? Which aspects of individual life should be withdrawn from scrutiny, surveillance and control? Where are hard norms needed? Where should ad hoc balancing of interests be replaced by a categorical balancing?


The answers to these questions must be formulated by reference to the basic features of the democratic constitutional state as described above, and especially from the perspective of the constitutive relationship between positive and negative freedom, will be evoked by M. Hildebrandt in chapter of this report. From this perspective opacity/privacy rules - prohibitive rules - should guarantee those aspects of an individual’s life that embody the conditions for his/her autonomy, self-determination and identity-building. This is the case because this autonomy develops and fuels both one’s participation in civil and political life and the fact that one develops a personality and a social/relational life. Privacy protects what lies behind the persona, the mask that makes an individual a legal person (cf. anonymity). It must preserve the roots of individual autonomy from external steering, against disproportionate power balances, precisely because such interference and unbalanced power relations do more than threaten individual freedom; they also threaten the very nature of our societies. Transparency and opacity are needed. because, as we have already explained, a democratic constitutional state is primarily concerned with the protection of the individuals’ autonomy (and resistance) in vertical and horizontal power relations. By recognising human rights, the democratic constitutional state generated legal mechanisms to impose non-interference in the private sphere. In our opinion, opacity tools, and particularly privacy, are closely linked to this endeavour as it tends to protect the values of liberty by erecting a legal shield against interferences. More concretely this shield can take the form of (legal) claims of immunity, anonymity, pseudonymity, opacity and sanctity. In other words, opacity protection, and particularly privacy, are closely connected to the concern for the protection of negative freedom.


This is, however, not enough because this negative side of freedom, ‘the freedom from’, is closely interwoven with its positive side, ‘the freedom to’. The latter points at the individual’s interaction with others and in society, at his/her participation in social life and at the fact that the permanent and indeterminate construction of one’s identity ‘takes place during the continuous interaction with a changing environment that demands continuous (small and larger) shifts in self-perception to cope with new challenges’. Individual freedom, autonomy and self-building are the result of a permanent constructivist interaction process between the individual and others, the environment and the worlds they make. Autarky or solipsism, on the one hand, and determination by and dissolution of the self in the outside world, on the other, are incompatible with such a concept of freedom. Again, this means that opacity tools cannot suffice: during interactions, when humans mingle with others and the world at large, their freedom remains protected. They indeed might well (temporarily) give up opacity, but this does not make defenceless prey for other (powerful) actors. On the contrary, then, transparency tools will come into play to regulate and organise the way other actors can deal with an individual. Opacity tools and transparency tools are linked by a switch system which is operated by the actions and choices of the individuals concerned, the regulatory policies of the state, the contexts of the action and so forth.         


In general, we believe that nowadays there is too strong a focus on transparency tools. A good example is given by the far reaching anti-terrorist measures taken by various governments in the aftermath of 9/11. But we have also detected the same tendency in the case law of the human rights Court of Strasbourg, which we find much more disturbing. In our opinion, this Court tends to overstress the importance of accountability and foreseeability relating to privacy limitations, and this to the detriment of the normative and prohibitive drawing of barriers. There is too much ‘yes, if’ and a lack of ‘no’. We are convinced of the dangers of such an approach because the conditions linked to transparency rules are never a hurdle too high to jump by governments or private actors. Without any opacity rules or limits protecting individuals, absolute power and a ‘procedurally correct dictatorship’ come dangerously within reach …


Opacity and transparency tool each have their own roles to play. They are not communicating vessels. Hence, for example, we do not think like Etzioni that public authorities cannot be denied technologies and means for crime fighting if their implementation is linked to enough transparency and accountability. On the contrary, taking privacy seriously implies the making of normative choices: some intrusions are just too threatening for the fundamentals of the democratic constitutional state to be accepted even under a stringent regime of accountability. Other intrusions, however, can be felt to be acceptable and necessary in the light of other sometimes predominating interests. Only then, after such a normative weighing of privacy and other interests, privacy-invasive and liberty-threatening measures can be, exceptionally and regrettably, accepted and submitted to the legal conditions of transparency and accountability.



The default positions: privacy as an opacity tool and data protection as a transparency tool  fidis-wp7-del7.4.implication_profiling_practices_03.sxw  The existing legal framework of privacy and data protection
Denis Royer 7 / 45