Over the last years lawmakers, privacy commissioners and scholars have discussed the idea of embedding data protection safeguards in ICT and other types of technology, by means of value-sensitive design, AI and legal ontologies, PeCAM platforms, and more. Whereas this kind of effort is offering fruitful solutions for operating systems, health care technologies, social networks and smart environments, the paper stresses some critical aspects of the principle by examining technological limits, ethical constraints and legal conditions of privacy by design. Foremost, privacy regulations present highly context-dependent normative concepts such as definitions of personal data and data controller, which entail a number of relevant issues when inserting data protection safeguards in ICT. Next, there is the risk that encouraging the change of social behaviour, or preventing harm-generating conducts from occurring, may entail paternalistic stances. Finally, the ubiquity of information on the internet has often suggested sovereign states to regulate extraterritorial conduct by imposing norms on individuals who have no say in the decisions affecting them, thereby jeopardizing the legitimacy of democratic rule of law. By deepening these critical aspects, the aim of the paper is to prevent some misapprehensions of the current debate on privacy by design. The idea should be to decrease the entropy of the system via ‘digital air-bags’ and to strengthen people’s rights by widening the range of their choices.
On the Principle of Privacy by Design and its Limits: Technology, Ethics, and the Rule of Law
PAGALLO, Ugo
2012-01-01
Abstract
Over the last years lawmakers, privacy commissioners and scholars have discussed the idea of embedding data protection safeguards in ICT and other types of technology, by means of value-sensitive design, AI and legal ontologies, PeCAM platforms, and more. Whereas this kind of effort is offering fruitful solutions for operating systems, health care technologies, social networks and smart environments, the paper stresses some critical aspects of the principle by examining technological limits, ethical constraints and legal conditions of privacy by design. Foremost, privacy regulations present highly context-dependent normative concepts such as definitions of personal data and data controller, which entail a number of relevant issues when inserting data protection safeguards in ICT. Next, there is the risk that encouraging the change of social behaviour, or preventing harm-generating conducts from occurring, may entail paternalistic stances. Finally, the ubiquity of information on the internet has often suggested sovereign states to regulate extraterritorial conduct by imposing norms on individuals who have no say in the decisions affecting them, thereby jeopardizing the legitimacy of democratic rule of law. By deepening these critical aspects, the aim of the paper is to prevent some misapprehensions of the current debate on privacy by design. The idea should be to decrease the entropy of the system via ‘digital air-bags’ and to strengthen people’s rights by widening the range of their choices.
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