'Surveillance and Digital Privacy in the Transatlantic ‘War on Terror’. The Case for a Global Privacy Regime' by Valsamis Mitsilegas in (2017)
Columbia Human Rights Law Review comments
By focusing on generalised, mass surveillance, the article examines the impact of the ‘war on terror’ on the right to privacy. The extent and limits of privacy protection in the United States and the European Union are analysed and compared, and it is argued that European Union law provides a higher level of constitutional protection of privacy than U.S. law. The article continues by providing a detailed analysis of the transformation of privacy in the evolution of transatlantic counter-terrorism cooperation, examines the challenges that such cooperation poses on the right to privacy in the European Union and provides a typology and evaluates critically the various transatlantic forms of governance which have been developed in order to address European privacy concerns. The final part of the article argues that in view of the increasingly globalised nature of mass surveillance and the human rights and rule of law challenges extraterritorial surveillance is posing, the way forward is for States to work towards the establishment of a global privacy regime. The article argues that European Union law can provide key benchmarks in this context and goes on to concretely identify four key principles which should underpin the evolution of a global privacy regime.
'Privacy of Public Data' by Kirsten E. Martin and Helen Nissenbaum in 2016
argues
The construct of an information dichotomy has played a defining role in regulating privacy: information deemed private or sensitive typically earns high levels of protection, while lower levels of protection are accorded to information deemed public or non-sensitive. Challenging this dichotomy, the theory of contextual integrity associates privacy with complex typologies of information, each connected with respective social contexts. Moreover, it contends that information type is merely one among several variables that shape people’s privacy expectations and underpin privacy’s normative foundations. Other contextual variables include key actors - information subjects, senders, and recipients - as well as the principles under which information is transmitted, such as whether with subjects’ consent, as bought and sold, as required by law, and so forth. Prior work revealed the systematic impact of these other variables on privacy assessments, thereby debunking the defining effects of so-called private information.
In this paper, we shine a light on the opposite effect, challenging conventional assumptions about public information. The paper reports on a series of studies, which probe attitudes and expectations regarding information that has been deemed public. Public records established through the historical practice of federal, state, and local agencies, as a case in point, are afforded little privacy protection, or possibly none at all. Motivated by progressive digitization and creation of online portals through which these records have been made publicly accessible our work underscores the need for more concentrated and nuanced privacy assessments, even more urgent in the face of vigorous open data initiatives, which call on federal, state, and local agencies to provide access to government records in both human and machine readable forms. Within a stream of research suggesting possible guard rails for open data initiatives, our work, guided by the theory of contextual integrity, provides insight into the factors systematically shaping individuals’ expectations and normative judgments concerning appropriate uses of and terms of access to information.
Using a factorial vignette survey, we asked respondents to rate the appropriateness of a series of scenarios in which contextual elements were systematically varied; these elements included the data recipient (e.g. bank, employer, friend,.), the data subject, and the source, or sender, of the information (e.g. individual, government, data broker). Because the object of this study was to highlight the complexity of people’s privacy expectations regarding so-called public information, information types were drawn from data fields frequently held in public government records (e.g. voter registration, marital status, criminal standing, and real property ownership).
Our findings are noteworthy on both theoretical and practical grounds. In the first place, they reinforce key assertions of contextual integrity about the simultaneous relevance to privacy of other factors beyond information types. In the second place, they reveal discordance between truisms that have frequently shaped public policy relevant to privacy. For example,
• Ease of accessibility does not drive judgments of appropriateness. Thus, even when respondents deemed information easy to access (marital status) they nevertheless judged it inappropriate (“Not OK”) to access this information under certain circumstances.
• Even when it is possible to find certain information in public records, respondents cared about the immediate source of that information in judging whether given data flows were appropriate. In particular, no matter that information in question was known to be available in public records, respondents deemed inappropriate all circumstances in which data brokers were the immediate source of information.
• Younger respondents (under 35 years old) were more critical of using data brokers and online government records as compared with the null condition of asking data subjects directly, debunking conventional wisdom that “digital natives” are uninterested in privacy.
One immediate application to public policy is in the sphere of access to records that include information about identifiable or reachable individuals. This study has shown that individuals have quite strong normative expectations concerning appropriate access and use of information in public records that do not comport with the maxim, “anything goes.” Furthermore, these expectations are far from idiosyncratic and arbitrary. Our work calls for approaches to providing access that are more judicious than a simple on/off spigot. Complex information ontologies, credentials of key actors (i.e. sender and recipients in relation to data subject), and terms of access – even lightweight ones – such as, identity or role authentication, varying privilege levels, or a commitment to limited purposes may all be used to adjust public access to align better with legitimate privacy expectations. Such expectations should be systematically considered when crafting policies around public records and open data initiatives.
