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Digital Privacy: A Primer, Part I

A.  Definition

1.  The Essence of the Right to Privacy

1.  Since there is no theoretical or legal universally applicable umbrella concept of the right to privacy it is important how we structure our thinking around this particular right.

There is no scholarly consensus on whether it is possible or even desirable to define a universal right to privacy. National differences as regards legal traditions together with political and cultural pluralism make such an endeavour difficult. Nevertheless, Krotoszynski makes a compelling argument for the construction of a global understanding of privacy from the bottom up (2016).

2.  The right to privacy can be both negatively and positively defined.

The negative right to privacy entails that individuals are protected from unwanted intrusion by both the state and private actors into their private life, especially features that define their personal identity such as sexuality, religion, and political affiliation, ie the inner core of a person’s private life (LGBTI rights; freedom of conscience and religion or belief).

The positive right to privacy entails an obligation of states to remove obstacles for an autonomous shaping of individual identities (Espinosa 970).

2.  Essential Parts of the Concept

(a)  Territorial and Bodily Integrity

3.  The right to be left alone is a crucial aspect of the right to privacy.

Historically, when referring to privacy and the respect for private life one has primarily referred to the sanctity of home, correspondence, bodily integrity and family (Schulhofer; right to a family life).

Expectations of privacy are in general high in this particular context hence the laws that regulate seizures and searches. In comparative constitutional law there is also a right to privacy in public places—the scope of which varies considerably between different constitutional systems.

The constitutional protection of privacy in public spaces in several European states is more generous than in US constitutional law, while Canada is to be found somewhere in between.

(b)  Personal Autonomy and Private Identity

4.  Privacy as autonomy takes its starting point in and presupposes territorial- and bodily integrity.

It is however broader and rests on the idea of privacy as necessary for individuals to be able to develop their own persona in order for them to free and well-functioning members of society and in order to achieve self-government. Therefore, within the private sphere individuals should be free to seek information and make intimate and private decisions related to for example religion, ethnic identity (ethnicity), sexuality, family life, etc.

In several jurisdictions these questions are dealt with under the auspices of security of the person (Canada), human dignity (Germany, South-Africa), and equality (right to security; dignity and autonomy of individuals).

(c)  Personal Data

5.  The third stepping-stone to achieve privacy is control of personal data, the main question being what personal data do we own and what constitutional protection do personal data have?

Data protection regimes focus on and regulate the content of the data, for what purpose it has been collected, how the data can be used, and under what legal conditions it can be shared between different parties.

Several qualifications should be fulfilled in order for the collection, storage and use of personal data to be in congruence with the right to privacy, for ex content (certain data may not be collected and registered), processing (by whom and how, for what purpose and for how long), and control (external and internal control), and the right to access to information for the person who the data concerns.

Data protection is especially important within the area of law enforcement cooperation and medical law.

(d)  Digital Privacy

6.  Internet and the digital era have introduced a new space within which privacy rights must be considered.

This question arose in the aftermath of the Snowden revelations and UN Resolutions 68/167 and 69/166 on the right to privacy in the digital age

. Clearly the issue of mass surveillance will continue to be of great concern as will be the increasing difficulty to uphold a clear line between public and private actors in this context.

This development creates new challenges due to surveillance, data mining, and transborder flow of data, speech and information in general in combination with the lack of a transnational definition or even common understanding of privacy (Cornell).

It also introduces new public and private actors: for example law enforcement bodies and service providers such as Google, Apple etc.

The global flow of information for various purposes—trade, law enforcement, national security —together with an increasingly important role for transnational private actors in for example the controlling of data creates the need for a minimum definition of the right to privacy, see for example the Safe Harbour Decision (Case C-362/14 Maximillian Schrems v Data Protection Commissioner).

There is also the question of how the increased access to data impacts on our expectation of privacy. The Canadian Supreme Court has held that privacy is a normative, rather than descriptive, standard (Tessling) and that access to data per se do not repeal the protection.

Source: Oxford Constitutional Law