The Reconstruction of Privacy through Law: A Strategy of Diminishing Expectations
41 Pages Posted: 28 Sep 2018 Last revised: 11 Jul 2019
Date Written: January 10, 2019
In a time of rapid development in privacy and data protection laws, the state of urban life has much to tell us about their long run effectiveness. Compared to even the recent past, major cities have largely lost the definitive public anonymity and obscurity that has characterised urban life for centuries. Saturated with sensors networked to powerful data analytics, they are at the epicentre of an ongoing revolution in governmental and commercial surveillance. In short, the future radical transparency of all human life is already emerging in our major cities.
This paper addresses a crucial question. Given a hundred years of privacy and then data protection law, how did this happen? In this paper, I argue that the explanation for this long running failure lies substantially in the wider political economy of information law, which continues to shape and limit the capacities of privacy and data protection law. The prevailing liberal democratic model of information law is structured around two key concerns: protecting the state’s powers of ultimate access to information and ensuring that all information remains potentially marketable. The particular vulnerability of personal information to demands for state and market access is, however, much more than a matter of political and economic power imbalances. Information law has developed through a dynamic relationship between governmental and commercial information uses and the continuous application of new technologies that render information more accessible and usable.
Over the long history of privacy and data protection laws, technologies have thus played a uniquely important role in catalysing the erosion of existing personal information protections and creating opportunities for strengthening access rights. The formidable privacy of physical circumstances, which was an ordinary and often unremarkable feature of life, has been gradually eroded away. The contested re-construction of that privacy through law has been, in comparison, porous and compromised. I explain this claim through three illustrations: First, in the transformation of the concepts of public space and public domain, which are frequently used to justify access to personal information with minimal safeguards; Second, in the conflict within the principles of individual consent and choice, which provide the cornerstone for both personal autonomy and marketability of information; and, Third, in the comparative structural weaknesses of privacy and data protection laws as a field within the wider sphere of information law.
Whether societies find more effective boundaries against further transparency or even change the governance of how personal information is accessed and used in conditions of transparency are primarily political and economic questions. Constructive changes in law and regulation can, however, feed into those wider processes of decision making. In its final part, the paper discusses ways in which important elements of privacy and data protection laws could be used more effectively. This includes current efforts to use diverse forms of collaborative public scrutiny and accountability to challenge information law’s embedded preferences towards access and use. Cities, not surprisingly, remain the test bed for success or failure.
Keywords: Cities, surveillance, anonymity, privacy, data protection, information law
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