Hero or Villain: The Data Controller in Privacy Law and Technologies
The Ohio State Law Journal(2013)
摘要
In Europe, privacy is considered a fundamental human right. Section 8 of the European Convention of Human Rights (ECHR) limits the power of the state to interfere in citizens’ privacy, ”except such as is in accordance with the law and is necessary in a democratic society”. Constitutional privacy protection also appears in the Fourth Amendment to the United States Constitution. Both the ECHR and the US Constitution establish the right to privacy at a high level of abstraction as freedom from government surveillance. Over the past 40 years, a specific framework has emerged to protect informational privacy. Unlike the constitutional documents, this framework is technologically minded. However, it provides little protection against the risk of surveillance by either government (which benefits from explicit execmptions) or private sector organizations (which are ass med to be trusted parties). This Article argues that privacy enhancing technologies (PETs) should fill the gaps between those frameworks to help individuals exercise their freedom from surveillance. Today, surveillance capabilities are no longer restricted to the realm of states. As more and more daily activities become mediated by technology, private sector organizations have gained the ability to conduct surveillance at an unprecedented scale, including of individuals’ communications data, online and offline purchases, geo‐location and health. In this Article, we address the role PETs play in protecting individuals from surveillance, a term we use to capture not only monitoring by government but also by private sector entities. While the term “PETs” has been used loosely to describe a broad range of privacy technologies, we use it in this article to mean technologies specifically aimed to enable individuals to engage in activities free from surveillance and interference. PETs allow individuals to determine which information they disclose and to whom, so that only information they explicitly share is available to intended recipients. We argue that PETs are aligned with the objectives of the constitutional framework, which given its level of abstraction is not tech‐oriented; while not always in tune with the goals of the tech‐oriented information privacy framework. Hence, PETs are trapped in a “regulatory limbo” between a framework which recognizes their goals but not their means, and one that COSIC Research Group, Department of Electrical Engineering, K.U. Leuven. College of Management School of Law, Rishon Le Zion. This Abstract was prepared for presentation at The Ohio State Law Journal Symposium titled “The Second Wave of Global Privacy Protection,” held on Nov. 16, 2012.
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关键词
data protection,encryption,privacy,pets
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