Data Protection: an essential issue for our I.S and our democracy.

By Yves Poullet Prof. Faculties of Law Namur and Liège

Director of the CRID (University of Namur)http://www.crid.be

yves.poullet@fundp.ac.be

ERC, Lisboa, October 16, 2008

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Introduction

• Preliminary questions

1. Which Data? Increasing number of data collected- New methods of collection - New types of data (trafic data, biometric data, etc)

2. Who is processing? New actors (intermediairies) – Visible and invisible actors – New methods of processing (profiling)

3. For which purposes ?

– From Paranoia to the « Global village » Myth

Facebook … as a way to realise the Myth.

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Introduction (2)

• Table of Content– Part 1: From a false comparison to the two facets of the

Privacy

– Part 2: The new dimensions of the ICT applications and their consequences

– Part 3: Reinventing Data Protection?

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What is Privacy?

1. A False comparison : global village and traditional village• The individual’s non transparency as a virtue

1. Apart from the vital need of opacity to the right to seclusion (article 8 of the C. of Europe Convention)

2. Concerns about the survival of this right in our Society

• The mastership on our informational environment

1. The informational selfdetermination from art. 8 of the C.O.E to Data Protection legislations

2. Concerns • Mastership and profiling : the statistical truth

• Mastership and functioning of our terminal equipment

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What is Privacy? (2)

2. Relationships between citizens and Data controllers in our I.S. : betwwen KAFKA and ORWELL• « Big Brother » : the increasing asymmetry between DC and DS (the

Google example) and its consequence : the reductionism

• « The Trial »: the radical opacity of our IS and its consequence: the anticipatory conformism.

3. Two facets of the privacy beyond Data Protection• Right to intimacy (passive) and right to self determination (active) are

both conditions of the building up of our autonomous development which are essential for our democracy (full participation to the Society).

• Privacy is the « fundamental fundamental » Human Right

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About new characteristics of the new ICT applications and their

consequences1. Characteristics of the new technologies

– Preliminary remark: Technology operates jointly with economic and social factors we have to take into account

– 5 major evolutions1. The increasing capacity of storing, processing and

transmitting data : the Moore Law2. The multifunctionality and miniaturisation of the

terminal equipment3. New Internet applications

1. Convergent networks2. Semantic Web3. Web 2.0

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I. Technological Landscape

A. Characteristics of the « new » Information systems : between Tera and

Nano

• Ability to store speech, data, images or any combination• Increasing capacity as regards the transmission ( 10Kb/sec.)• Increasing capacity as regards the processing ( Moore’s Law )• Increasing capacity as regards the storage capacity• Multiplication of terminal devices ( as regards their mobility and their size)

-> E.g. the desktop computer bought at the supermarket

Year 1987 2007 2020 (x1000)

Processor 8 Mhertz 3 Ghertz (x 375) 3 TeraHzMemory 640KB 512 MB(x 800) 512 GbytesHard Disk 20 Mbytes 120 Gbytes (x 6000) 120 TerabytesPhone conn. 10Kb/sec 3 Mb /sec 10

Gb/sec

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About new characteristics of the new ICT applications and their

consequences (2)4. New methods of identification and authentication : the digital

identifiersWhy ?

How ? From traditional identifiers to automatically generated identifiers and to biometric data.

5. Ambient intelligence Ubiquitous computing – opacity – Human being as an object amongst others

one.

2. Trends and Consequences• Privatisation of the cyberspace : from private Internet governance to

privatisation of the public discussion space and the blurring frontier between public and private space.

• A suggesting comparison between DP Laws and environmental law : the global dimension of our private actions.

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Reinventing Data Protection?

1. Law has its own limits• Take into account the societal and economical aspects of

the innovation and of their applications: the need for political choice.

• Illustration by certain present debates2. Technology is the Risk but perhaps also the solution

• The RFID discussion• From PETS to the absolute need for a transparent and

mastered technology• « Privacy by design » and the liability of the producers

even designers.

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Reinventing Data Protection?

3. Two key words: Proportionality and Transparency

1. Proportionality

• Proportionality of the processing : Choice of the less intrusive data processing and lawfulness of the processing

• Proportionality of the content

• Against the public security and economic logics…

• Certain consequences: about consent and other questions?

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The background of the Convention 108

Fundamental rights and freedomIn the early 80’s, those rights needed to be applied

to the individual through his dataIn the beginning of the 21th century, those rights

needs to be also applied to the individual through his

profile

Ratio materiae :

personal data=artefact=image of the

individual

Ratio materiae :

profile=statistical induction=image of the

individual

Technological landscape :1. Big, expensive and slow computers2. Scattered and heavy databases 3. Limited telecommunication capacities4. “stupid” telecommunication device for the

public.

Technological landscape:

1. Small, cheap and fast computers

2. Ubiquitous computer data (daily life recorder)

3. Explosion of interconnected “always on”

networks

4. Intelligent telecommunication devices (CFR

POINT 2)

Freedom of information but

-Legitimacy (purpose principle : compatibility and

proportionality, special categories of data (higher

risk=>additional security or interdiction))

-Data quality (security, right of rectification)

-Information symmetry (information, notification,

access)

Freedom of information but

- Lowest legitimacy (purpose principle : compatibility

and proportionality, special categories of data and

new data

inferred from trivial data (higher risk => additional

security or interdiction))

- Lowest data quality (correct data => highest

probability of correctness)

- Risk of information asymmetry =>remedies :

enhancing information and access right

Functional approach :

Information must be shared, exact and limited

Functional approach :

Information must be shared, exact and limited

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Reinventing Data Protection (2)

2. Transparency

- Enlargment of the obligation of transparency as regards the characteristics of the processing : examples drawn down from the profiling

- New methods of access: technology as support to the access.

- Transparency of the terminals.

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CONCLUSIONS

• The undisputable benefits of the technology…• But …• Against the « so-called absolute logics » (security and

economical) • Beyond Data Protection Authorities’ control, a citizen’s

concern• Call for education including ethical education.