05 July 2014

Rights and Responsibility

'The Human Rights Declaration of the Association of Southeast Asian Nations: A Principle of Subsidiarity to the Rescue?' (University of Oslo Faculty of Law Research Paper No. 2013-39) by Andreas Follesdal examines
ome of the criticism against the 2012 Human Rights Declaration of the Association of Southeast Asian Nations (ASEAN), by the UN Commissioner for Human Rights, UN experts, and several civil society groups. The main concern is whether a principle of Subsidiarity can defend the controversial 'state centric' elements of the Declaration, since some authors have appealed to a principle of subsidiarity in order to defend similar features of international law generally. Different interpretations of subsidiarity have strikingly different institutional implications regarding the objectives of the polity, the domain and role of subunits, and the allocation of authority to apply the principle of subsidiarity itself. Five different interpretations are explored, drawn from Althusius, the US Federalists, Pope Leo XIII, and others. One conclusion is that the Principle of Subsidiarity cannot provide normative legitimacy to the state centric aspects of current international law, including the ASEAN Declaration of Human Rights.
'Retaining the Genetic Profile of Innocent People: A Difficult Balance Between Respecting the Individual’s Privacy and Public Security' by Luciana Caenazzo and Pamela Tozzo in (2013) 14 Synesis: A Journal of Science, Technology, Ethics, and Policy argues [PDF]
In the course of investigations related to a penal prosecution in Italy, biological material obtained from individuals considered directly involved in a crime, but neither suspected nor prosecuted, may be acquired without their knowledge and/or consent. Although scientific progress constantly provides greater potential to forensic investigations, new ethical implications arise from the need to balance the greater efforts towards justice which science allows against the protection of individual human rights. The issue that arises in our case is that a biological sample (and consequently a genetic profile) acquired without the consent and knowledge of the subject might become discriminatory and stigmatizing for the subjects involved (individuals involved in the life of the victim, but neither suspected of carrying out the crime, nor prosecuted) should the investigative activity enter the public domain. The protection of an individual’s privacy within the context of the investigations goes beyond normal parameters of guarantee, because the risk of placing the identification process outside the control of the individuals is real. This risk therefore has a social relevance, considering that the investigative process might become discriminating and stigmatizing should the investigation enter the public domain. The safeguarding of privacy rights and the guarantee of society security must not contradict, but rather complement, each other.
The authors conclude -
The Italian National Committee on Bioethics in the document “The Identification of The Human Body: Bioethical Aspects of Biometrics” (5), paragraph “The right to oblivion” reports: “Memory is a key element of individual identity and social relations. It is difficult to imagine any internal development and cultural progress without the conservation and organization of traces of the past, which may take many forms: memory, history, opinion, prejudice, etc.). Oblivion is just as important to make a selection within this set of elements, avoiding any unnecessary or harmful accumulation. To ensure social stability and to protect individuals’ fundamental rights and freedoms, juridical experience has had to develop artificial forms of oblivion (despite their diversity: removal from criminal records, prescription, amnesty, pardon, etc.), where morality entrusts to forgiveness the extreme inner effort to overcome the past”.
In our context “avoiding any unnecessary or harmful accumulation” should be considered on two levels: the storage of biological samples, and the storage of data on each individual in the prosecution files.
In the literature, the issue concerning the storage of DNA samples in forensic databases is considered by many as an infringement of civil liberties. It is also argued that the need for a relationship of trust between the government and society would favor the storage of just the genetic profiles, and the destruction of actual biological samples. The destruction of the samples immediately after the analysis should serve to guarantee to the public that their DNA will not be used for purposes unrelated to legitimate law enforcement. After the DNA sample is destroyed, the remaining information would consist of a series of numbers without diagnostic or prognostic interest (10,11). In the case we have presented, we think that there is no valid ethical reason to preserve a biological sample once it has been analyzed to obtain the individual genetic profile, and therefore the sample should be destroyed after the completion of profiling, as is done, for example, in some EU forensic databases.
Regarding the genetic profiles obtained from biological samples of the individuals involved, they should only be used for a “one-off comparison” against the crime scene samples. If the samples taken fail to match samples found at the crime scene, the samples and the related profiles should be destroyed. This would guarantee “the right to oblivion” and would therefore fully respect the privacy of this particular category of individuals, who are innocent and totally unaware of the investigation being conducted on them. We can consider in this context “the right of oblivion” as the right not to be filed, classified, and possibly irreversibly marginalized on the basis of information gathered without your knowledge through non-transparent criteria, avoiding the durability of findings.
An alternative strategy which can be outlined is a consensual negotiation between the authorities carrying out the investigation and the persons involved, with the aim of obtaining consent for the sampling and, especially, for the analysis of the sample. Such a procedure could legitimize sample collection, in a manner similar to the collection process of samples in case of the “DNA Dragnet” procedure. In this procedure, the police ask a number of individuals to give voluntary DNA samples in a effort to identify the perpetrator of a crime or a series of a crimes (13,14), and the biological materials are donated after informed consent, and voluntarily. In this way the persons involved in the investigation are informed about the collection of biological material as part of the procedure.
The issue arising in cases where the biological sample (and consequently the genetic profile) is acquired without the knowledge and/or consent of the subjects who are involved in the investigation, but are neither suspected nor prosecuted, is that it might become discriminating and stigmatizing for them, especially where the investigative activity enters the public domain. This constitutes a crucial point in the balance between the restriction of individual liberty in terms of privacy violation and promoting security.
The right to oblivion could represent a solution that justifies the practice adopted in our context, ensuring both the protection of individual privacy and the safeguarding of public security. This right should be considered regarding two aspects: the storage of the biological sample, and the storage of data of each individual in the prosecution files, in relation to the importance of the individual to the investigation and the protection of individual privacy, and in relation to different procedures which should be followed. When dealing with the investigation of severe crimes, it seems that the vast majority of the population in democratic countries is normally willing to cooperate with the police. Individuals should be requested to give up their right to privacy to the extent required to ensure public security, by giving the individuals assurance of clear definitions and behaviors, and by maintaining shared and transparent arrangements and procedures.
Furthermore, jurisprudence should seek to balance the rights of the individual against the need for public security, establishing appropriate provisions in the different contexts to achieve the protection of individuals’ privacy. The protection of the individual’s right to privacy and the public interest of security should not contradict but should carefully complement each other, in order to maximize the citizens’ trust in a coherent and transparent justice system.
'Voter Privacy in the Age of Big Data' by Ira Rubinstein comments 
In the past several election cycles, presidential campaigns and other well-funded races for major political offices have become data-driven operations. Presidential campaign organizations and the two main parties (and their data consultants) assemble and maintain extraordinarily detailed political dossiers on every American voter. These databases contain hundreds of millions of individual records, each of which has hundreds to thousands of data points. Because this data is computerized, candidates benefit from cheap and nearly unlimited storage, very fast processing, and the ability to engage in data mining of interesting voter patterns.
The hallmark of data-driven political campaigns is voter microtargeting, which political actors rely on to achieve better results in registering, mobilizing and persuading voters and getting out the vote on or before Election Day. Voter microtargeting is the targeting of voters in a highly individualized manner based on statistical correlations between their observable patterns of offline and online behavior and the likelihood of their supporting a candidate and casting a ballot for him or her. In other words, modern political campaigns rely on the analysis of large data sets in search of useful and unanticipated insights, an activity that is often summed up with the phrase “big data.” Despite the importance of big data in U.S. elections, the privacy implications of data-driven campaigning have not been thoroughly explored much less regulated. Indeed, political dossiers may be the largest unregulated assemblage of personal data in contemporary American life.
This Article seeks to remedy this oversight. It proceeds in three parts. Part I offers the first comprehensive analysis of the main sources of voter data and the absence of legal protection for this data and related data processing activities. Part II considers the privacy interests of individuals in both their consumer and Internet-based activities and their participation in the political process, organizing the analysis under the broad rubrics of information privacy and political privacy. That is, it asks two interrelated questions: first, whether the relentless profiling and microtargeting of American voters invades their privacy (and if so what harm it causes) and, second, to what extent do these activities undermine the integrity of the election system. It also examines three reasons why political actors minimize privacy concerns: a penchant for secrecy that clashes with the core precept of transparent data practices; a tendency to rationalize away the problem by treating all voter data as if it were voluntarily provided or safely de-identified (and hence outside the scope of privacy law) while (falsely) claiming to follow the highest commercial privacy standards; and, a mistaken embrace of commercial tracking and monitoring techniques as if their use has no impact on the democratic process.
Part III presents a moderate proposal for addressing the harms identified in Part II consisting in (1) a mandatory disclosure and disclaimer regime requiring political actors to be more transparent about their campaign data practices; and (2) new federal privacy restrictions on commercial data brokers and a complementary “Do Not Track” mechanism enabling individuals (who also happen to be voters) to decide whether and to what extent commercial firms may track or target their online activity. The article concludes by asking whether even this moderate proposal runs afoul of political speech rights guaranteed by the First Amendment. It makes two arguments. First, the Supreme Court is likely to uphold mandatory privacy disclosures and disclaimers based on doctrines developed and re-affirmed in the leading campaign finance cases, which embrace transparency over other forms of regulation. Second, the Court will continue viewing commercial privacy regulations as constitutional under longstanding First Amendment doctrines, despite any incidental burdens they may impose on political actors, and notwithstanding its recent decision in Sorrell v. IMS Health, which is readily distinguishable.