The socio-legal context of privacy

tags

Privacy Law

Notes

the currently developing legal concept of privacy denies a social and interactive context to information;

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environment has so radically changed with digitisation that many expectations of privacy are redundant;

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legislation and judicial interpretation – when aimed at protecting privacy as, for example, in data protection law – usually misses its mark

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ultimately, ‘Privacy cannot be the dominant value in any society. Man has to live in society, and social concerns have to take precedence’

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a theory of self and society is an essential requirement of any coherent and critical legal understanding of the nature of privacy.

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Often the agency which is seen as the opponent of privacy is the state.

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Privacy concerns interpersonal relationships (sometimes one-to-one, sometimes one-to-many) and how they combine into larger societal relationships.

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Privacy is about the physical/psychological relationship between self and society

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Privacy is about power, authority and role in society.

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2. Privacy v. Goffman's dialectic

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those against whom the claim to privacy is being made.

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European law recognises privacy in a confused manner because a perspective has developed that privacy is ‘a good thing’ rather than we have a clear notion of what it is:

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just as someone may have desire to hide information, others have similar desire to collect information – and these desires are frequently persuasive and reasonable.

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communication is always a manoeuvre between parties where one or both are attempting to present a certain image of themselves (their ‘self’) and others are testing that image against other factors and information:

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In a world where everyone had Bush’s suggested total control over their information, we could have no real trust.

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Without trust – which is an outcome of information-seeking behaviour – all social relationships will be fractured and pathological. Yet trust-building, information-seeking behaviour is antithetical to privacy: privacy denies the right to seek information.

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privacy advocates have found it extremely difficult to define informational privacy.

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‘balance’ is a problematic concept and one which lawyers frequently tend to use to gloss over difficulties, suggesting that it will be alright in court on the day.

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suggests that what is really need instead is ‘steering’ – ‘some combination of regulation and self-regulation, along with better public education and the avail- ability of privacy-enhancing technologies may succeed in steering towards privacy protection’.

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whether privacy and data protection have actually been well served by the protection system to date.

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3. The importance of the other

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Durkheim was seeking an ordered non-chaotic society and his term indicated such a society: one which the sociologist should remedy wherever found.

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privacy advocates ignore the ‘informational dance’ between parties which relate to these aspects of conflict, power and unpredictability.

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The approach which presumes that personal control of information is the ultimate goal to be achieved is ideological rather than academic,

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privacy is currently everywhere. Even in locations where surveil- lance is total, there is a hiding of information from others

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despite extensive and well-funded assault on the ‘privacy’ of terrorist groups, they managed to hold their informational cards close to their chests.

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be wary of assuming that surveillance necessarily leads to totalitarian systems of control.

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Obviously the limitations of this method are set only by the size of the filing cards, and, theoretically, a gigantic single sheet could show the relations and cross-relationships of the entire population. And this is the utopian goal of the totalitarian secret police.’

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Most governments wish order through technology – Arendt’s view of totalitarian states is the opposite: that they wish disorder via technology since without disorder their continued existence would be in doubt. This significantly changes how we must discuss their use of technology.

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those wishing to keep their details from a cancer registry will have a substantial effect upon the epidemiological value of that information – it has been suggested that registration falling much below 95% would make these registries worthless.

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to utilise e-Gov effectively, the same processing methodology which is used by Equifax, dunnhumby, etc. has to be adopted.

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Yet this is a particularly government-centred approach to the use of information: the information is passed between citizen and government and held confidentially from other citizens: this, we are told, is good governance. It clearly is not: good governance means that we know what our neighbours are up to, just as much as we know what government is up to.

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Many believe that DNA information is ‘personal’ and can thus be controlled and indeed should be controlled. Of course, the essence of DNA information is that it reflects a biological community and information on one member of that community will surely indicate biological aspects of others.

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It may just be that whereas print produced a mind set which emphasised the detached observationalist view (McLuhan describes it as a Cartesian outlook49) that one of the major transitions from the new electronic world is that we simply grow used to living – not without ‘privacy’ – but with a different form of privacy to that which we have become accustomed.

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4. The rise of privacy protection: perception v. success

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Such perceptions are naı̈ve: it would not be possible to gain credit at all unless there was some means for the seller to check the trustworthiness of the potential purchaser.

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Tesco’s Clubcard application form has a Data Protection Statement which meets the requirement of unambiguous consent. Despite the happiness of customers to sign up to this system and to allow the collection of their data for what some see as intrusive processing, when they are questioned on their perceptions as to privacy some immediately take a more concerned position.

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posit that customers are happy to sell their personal information while at the same time complaining – in opinion surveys – about losing control of it.

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5. The House of Lords approaches privacy

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(a) Privacy and breach of confidence

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breach of confidence has been taken from the commercial field and applied to underscore chosen moralities,

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(i) Diffused presentational control

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puts the responsibility upon the recipient of information to control it rather than upon the holder of that information to keep it secure.

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(ii) The ‘Gleeson test’

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(iii) Knowing what is ‘public’

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In traditional commercial secrecy law, the concept of reverse engineering is an allowable method of determining the nature of a secret process or such like. So long as the information has not been derived from a source which is under an obligation of confidentiality, anyone can reverse engineer the result without problem. In privacy, this is clearly not the case: one could know that a support group meets at a given location, one could see someone leave that location and, putting two and two together (presuming one arrives at four) still not be able to inform any other person of one’s conclusion.

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(iv) Segmentation of personality

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(v) Less insight, more protection

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The emphasis upon individual perception through expectation results in unexpected conclusions.

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This gives more protection to the naı̈ve (and perhaps the drunk) than it gives to those with reasonable common sense.

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greater possibility of protection to those who prefer not to understand that technology.

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(vi) Photographs

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(b) The moral aspects of the judgment

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replacing relatively complex legal principles with simplistic moral principles.

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should make us consider whether we want to either encourage safer roads or support privacy for drunk drivers.

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The privacy/anonymity model offers only a partial solution to this problem,92 since it is based on an atomised self, separated from society and only able to fully enter society when the cure is effected.

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‘Anonymity is bad. Everybody should be as known with their addiction as they are with their diabetes,’

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We should also remember that very, very few people are ever touched by large scale press intrusion.

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6. The data protection landscape

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(a) Ignoring journalistic/community tradition

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the fact that an individual has injured her foot and is on half-time on medical grounds constitutes personal data concerning health within the meaning of Article 8(1) of Directive 95/46’.

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information which would be normal and perhaps expected within a printed communication passed between members of a church would contain this kind of informal chat and, presumably, would be welcomed by members of that church group.

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(b) Favouring capital

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(c) Replacing employment litigation?

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There appears to have been no complaint from data subjects whose data was being ‘abused’ or whose ‘privacy was being invaded’ and indeed it may be that due to their personal relationship that they felt that they were also in a commercial relationship with Mr Soltysik and welcomed being approached with offers by his new company: the data subjects may well have received better and cheaper service from this company, so prosecution was not necessarily in the interests of customers.113 Instead, what appears to be happening here is that the complainant was the previous employer,

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(d) Hiding debtors?

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(e) Whats wrong with fiduciary relationships?

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(f) Chilling communications?

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rather than stopping abuse of data processing, it acts as a bar on the valid communication of information.

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7. On balance?

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8. Conclusion: the value of a socio-legal privacy theory

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too often the UK courts have paid more attention to the needs of the hypersensitive than to any theoretical issues:

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The sensitivity of ‘some’ seeming to provide all the theory required to overcome any practical or social benefit which may have arisen from the collection of anonymised prescription data.

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