Information-gathering technologies, privacy and human rights

Technological progress provokes both hope and anxiety. Anxiety centres on privacy, which is therefore likely to be close to the project’s heart. Yet “privacy” is poorly understood. It has usually been framed negatively as a ‘right to be left alone’, especially by government. Yet in the Western tradition at least, it is the basis of personal autonomy, which in turn permits entry into the public sphere. People participate in society, work, culture, political activities or government first as private persons: the idea of “privacy” has been fundamental to the way of organising society that gave rise to civil and human rights. The traditional notion of a ‘right to privacy’ (much newer than privacy itself) forgets that having privacy is a condition of having rights, and indeed of participation in modern society. In this context, current anxiety around privacy can be understood as due in part to uncertainty over the shifting boundaries of personal autonomy.

Information technologies both extend and diminish personal control over the boundaries of the private sphere. They extend privacy because they offer new means to set personal boundaries, form and project identity, participate in the public sphere and associate with others. Mobile phones, bank accounts and personal websites all harness data that enable individuals to project themselves in the public sphere (employing usernames and passwords to monitor boundaries). Technology is also harnessed elsewhere – in health databases to extend lifespan and eliminate disease, to enforce security, and so on. All these innovations can bolster the capacity of individuals to act autonomously.

On the other hand, technological advance challenges personal autonomy, traditionally understood. Private individuals neither manage nor own the technologies they increasingly depend upon. Personal privacy is (or feels) threatened in four ways. First, the architecture of data and communications systems categorizes individuals and their attributes in novel and predetermined ways, for functional purposes that refashion personal identity in terms that sometimes the individual, but often third parties, create and administer. Second, the systems are now so advanced and complex that modern users cannot expect to comprehend their functioning and adjustment, or understand what data is collected, who has access to it, and how access and usage is monitored, if at all. Third, the IT revolution has been accompanied by a transfer of management of public infrastructures into private hands. Whereas individuals previously entrusted the policing of their private spheres to government (the police, post and telecommunications services), albeit guardedly, today it is not clear whether individuals expect the private sector to defend the security of their personal information from the state, or vice versa. Fourth, ordinary safeguards of the kind traditionally used to monitor governments tend to fail in a world where data flows barely recognise national jurisdictions.

A Council project on data-gathering technologies cannot therefore avoid the issue of privacy. At this stage of design, however, we can only say what the project will not do. It need not focus on data protection standards: this major issue of privacy regulation is already the subject of study. It should not join the entrenched debate on the right to privacy, which habitually pits an artificially super-autonomous individual against an invasive and oppressive state. The terms of this debate tend to encourage confusion and inconsistency. Finally, it will not simply celebrate technology as a source of good: anxieties associated with the expansion of information technology are real and important and should be taken seriously.

There is scope, however, for clarifying and deepening understanding. The Council can help to identify realistic approaches to the issues that technology and privacy raise, on the basis of authentic rights concerns. In keeping with its mandate to broaden and deepen debate, and think ahead, this project might focus on human rights values, with the goal of revitalising the notion of privacy, and clarifying its complex relationship with both rights and technological advance, and so provide ways to respond to the anxiety embedded in this relationship. The Council is well placed to assess the cluster of human rights issues associated with privacy at a time when those core concepts appear to be coming under strain thanks to technological advance. The project might seek to clear away some of the confusion that surrounds discussion of privacy and autonomy, which threatens to bury these important values beneath unrealistic and unrealisable notions of freedom from state and society.