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The Geopolitics of Personal Data and the Governance of Privacy. Colin J. Bennett Department of Political Science University of Victoria BC, Canada www.colinbennett.ca cjb@uvic.ca Presentation to Conference on “Power and Difference,” Tampere, Finland, August 29 th.
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The Geopolitics of Personal Data and the Governance of Privacy Colin J. Bennett Department of Political Science University of Victoria BC, Canada www.colinbennett.ca cjb@uvic.ca Presentation to Conference on “Power and Difference,” Tampere, Finland, August 29th
Trends in Surveillance Practices – The “New Transparency” • Routinizationand expansion of "everyday surveillance” • Ambiguity about the nature of personal information • Surveillance of mobility and location • Embedding of surveillance in material objects • Peer-to-peer (horizontal) surveillance • Globalization of surveillance practices and processes Is the concept and regime of “privacy” appropriate to meet these challenges?
Justifications for Privacy in the West • As a Right of the Person • La Vie Privée (France) • Privatsphäre (Germany) • The “Right to be Let Alone” (United States) • “Integritet” (Sweden) • As a Political Value: A Check against Powerful State and Private Organizations • As an Instrumental Value • To ensure that the right data are used by the right people for the right purposes • To build “trust”in e-commerce and e-government • To manage “risk”
The Sociological Critique of “Privacy” • Rooted in individualism • A rights-based discourse • Excessive use of spatial metaphors • Insensitive to discrimination and “social sorting” • Cultural relativism
The Information Privacy Principles • Accountability • Purpose identification at time of collection • Informed consent for collection • To limit use and disclosure (finality) • Retention limitation • Data quality • Data security • Openness about policies and practices • Individual access and correction
A principled-based approach appears in: • Comprehensive data protection laws in around 80 countries • Sectoral Legislation in information intensive industries • International agreements from Council of Europe, OECD, European Union, Asia-Pacific Economic Cooperation • Self-regulatory codes and management and technical standards
International Policy Convergence • International policy learning • Elite networking • Policy harmonization • Policy penetration
The European Union • Directive 95/46/EC on Personal Data Protection • Harmonization of all European Data Protection laws to higher and common standard • Insistence on a “supervisory authority” with common powers in each state • An “adequate level of protection” in countries that receive European personal data • Directive 2009/136/EC: The “Cookie Rules” • Draft Regulation on Data Protection, January 2012
The EU’s “Adequacy Standards” • Articles 25 and 26 of the EU Data Protection Directive (1995) 95/46/EC • Personal data should not be transferred outside EU unless an “adequate level of protection” which requires: • Basic content principles: Purpose limitation; data quality and proportionality; transparency; security; rights of access, rectification and opposition; restrictions on onward transfers • Procedural/enforcement principles: good level of compliance with the rules; support and help provided to individual data subjects; appropriate redress provided to the injured party • Administered by Article 29 Working Party of Supervisory authorities
The Council of Europe Regime • 1981 Convention on the Protection of Individuals with Regard to the Automatic Processing of Personal Data (Treaty 108) • Ratified by 25 countries • Signed by 33 countries • Recommendations on specific practices
The OECD Regime • Guidelines on the Protection of Privacy and Transborder Flows of Personal Data(1981) • Guidelines for the Security of Information Systems (1992) • Guidelines for Cryptography Policy (1997) • 30 year anniversary of guidelines and analysis of their future?
The APEC Regime • The APEC Privacy Principles (2005) • Pathfinder process for accountable cross-border flows of personal data within APEC
International Standards Regime • ISO 27000 series (Data Security) • ISO 24745 (Biometric Information Protection) • ISO 24760 –( Framework for Identity Management). • ISO 29100 – (A Privacy Framework) • ISO 29101 (Privacy Reference Architecture)
The Policy Dilemma ADEQUATE LAWS? • The presence of key legal principles • An independent supervisory authority • A good level of compliance ACCOUNTABLE ORGANIZATIONS? • Makes original collector of personal data ‘responsible’ – ‘liable?’ • Evaluates the “due diligence” of the organization • Use of contracts • Binding corporate rules • Self-certification schemes • Third-party certification to management and technical standards
The Framing (Discursive) Dilemma • The Protection of “Privacy”? • The Minimization of “Surveillance”?
The Geo-Political Dilemma • National Sovereignty • Personal Identity and Subjectivity • The “Anti-Geography” of the Internet