Angels and Demons: Data Protection and Security in Electronic Communications

Chapter 10
Angels and Demons: Data Protection and Security in Electronic Communications

Pedro Ferreira

Information Society and Human Rights

We live in what is typically labelled the Information Society (third industrial revolution,1 Third Wave,2 Networked Society,3 the Age of Knowledge,4 Bit Society,5 or Communication Society6). It has been an evolutionary concept: starting with the electronic age, where the personal computer began to be intensively used; followed by the information age, characterized by networked computers; and arriving in the digital era, dominated by the wide use of all kinds of networks, terminals and applications; culminating with the rise of a new digital society.

To some the digital society is defined by a particular configuration of the relationship between technology and Man, what Castells designates as a new mode of development7 – informationalism – as ‘a technological paradigm based on the augmentation of the human capacity for information processing and communication made possible by the revolutions in microelectronics, software, and genetic engineering’.8

It’s out of the scope of the present chapter to evaluate if the new techno-economic paradigm has given way to a new ‘age’ or is it still a refinement of modernity, a radical modernity, according to Giddens,9 or a liquid modernity, in the view of Bauman.10

However, there are important elements of the earlier modernity – such as the historical moment in which human rights were recognized – that persist into the digital society. As impressive as the digital society may be in terms of its structure around technology, the second industrial revolution has probably influenced, changed and transformed more profound and comprehensively economic activities in our way of life, than the Internet and information technologies. In many aspects, the social and economic relations based on the underlying networks are not drastically different from those of previous periods. The digital age did not create new principles for the accumulation and distribution of wealth or even change the logic of how the market works,11 especially since the governance of the globalization remains unsolved. The economic growth of the 1990s in the last century and at the beginning of this century (the increase in the value of securities capital, the increased use of credit), based largely on the digital economy, has proved a bubble hiding explosive frailties in the economic growth (increased spending led to the deficit on balance of payments, private indebtedness and to the financial crisis) that look very similar to other economic cycles.

But, on the other hand, it is clear that much has changed, if not the significance of the information and of the networks, aspects common to most societies, at least the shape and intensity (complexity) that these two concepts (information/networks) take in modern times it’s something never seen before. In other words, the novelty of the digital society is a new paradigm for the way social and economic relations make use of networks/information and how, in turn, networks/information influence and design human relations. Manuel Castells, in his trilogy,12 conceives the new community as organized under ‘the Net and the Self’. The network symbolizes the new forms of community organization linked electronically, while ‘Self’ refers to the ways in which individuals reaffirm their identity. The network should be a reflection of the identity-community but at the same time, identity is being confronted and defined by how it updates itself on the network.

From a legal perspective, this means that even ‘traditional’ personal rights are put to the test by the permanent tension existing between information/networks and community/identity. Needless to say, this tension increases the closer we get to a world where to be online is not opposed to being off-line; they are in fact continuous. What we currently have is a set of characteristics of the formal process of communication that did not exist before: screens, sensors, machines, applications that shape a virtual world that increasingly interact with the analogue reality.

One of the major consequences of this interaction is that identity is now widely avowed by technology. An increasing number of human activities are carried out through networked technological means, causing the personality to be subjected to a process of dispersion and reconstruction, where the protection offered by the analogue world is no longer present as we will discuss in this chapter.

First, in the networked world some aspects of personality decay, for the simple reason that the locus of existence pours through the networks at a global scale. The universalization of the Internet means, from the user’s perspective, that the entire life of any person online is likely to be accessed and registered by an unspecified number of subjects anywhere in the world. Although access is local, personal information, the word, the image, the gesture, the silence is captured, processed and distributed by means of global communication.

It is true that ‘being online is a fourth dimension, a logic and infinite dimension where all [..] relations are equivalent to reproduce in the physical world, as if the online universe was the projection of a shadow’.13 But, contrary to what happens in the analogue world, in cyberspace, when we leave our home, meaning, as soon as we go online, we are marked by an invisible bar code.14 Someone, usually without our knowledge, registers what we do, where we are, with what frequency and how often.

Any step in the digital world easily leads to unauthorized collection and processing of personal data, the compilation of consumption profiles, the digital historical record, to trade in personal information, and to the pressure of privacy with unsolicited messages (telephone, fax or electronic mail, including SMS and MMS) which, briefly, leads to forms of direct or indirect control over people’s lives.15

In other words, on the Internet ‘anonymity is purely illusion’16 or rather, the Internet combines the right to anonymity, the possibility of identification and the requirement of identification.17 So that, in all propriety, it can be said that ‘today it is possible – theoretically possible, fortunately – to provide the itinerary, to the minute, but without the genius of Joyce in Ulysses – of the life of a peaceful citizen, in a single day using the computer [..]’.18 What is surprising is that new technologies are using a new language to retell our story. Now these little pieces have unfamiliar names such as caller line identification, TCP/IP (Transmission Control Protocol/Internet Protocol), cookies, RFID or e-mail address.

Hypothetically, every person and every object may one day be linked to a network and interact, consciously or not. The network will then exist as an accurate representation of reality. The passive mapping of existence today (the online activity matches the passivity of the individual seated in front of his screen) will become active (real life activity is immediately registered and read by others).

This electronic itinerary of life, even when legal, is potentially harmful to the protection of the person. Once collected and processed, this set of information allows the pursuit of a permanent control on the Internet and the users are caught between freedom and participation, on the one hand, and between communication and confidentiality on the other. Their autonomy is compressed and even the meaning of ‘person’ is distorted because their decisions are anticipated and instrumentalized in the benefit of others and many aspects of their privacy are controlled by others, usually without their knowledge or consent.

Thus, secondly, another threat faced by personality online is not just fragmentation but the chances of digital reconstruction of multiple personalities by any person, anywhere.

This means that analogue reality may not be directly imported to the digital because personality transmutes itself, allows for new personalities, even if they are still not recognized as such by law. In the analogue world the person is presented as ‘one body, one identity’.19 In the digital world, the person is the result of the aggregation of different data and therefore can have many different electronic personalities created in a heterogeneous way by simple technological performance or by commercial interest.

However, these different ‘persons’ do not enjoy the same protection that would be expected, and from which they traditionally benefit in the analogue world. The personality, disseminated as mentioned, distances itself from its original personal core, and witnesses a reduction, to that extent, in the degree of protection. In a virtual environment it is very difficult to know when and what kind of data are generated by the networks, or who processes them or for what purpose. On top of that, new technologies like cloud computing make personal data even more disperse, fluid and global. Since data are accessed remotely and not locally one can no longer tell which jurisdiction applies.

This increased availability and dissemination of personal data weakens the autonomy of its owner and extends the means of social control and surveillance,20 public and private, over personal values and behaviours – and to the same extent, increases the risk of infringement of other fundamental rights. The danger associated with technology is not readily identifiable with a single cause or reducible to a single ‘enemy’. The concentration of power and the ‘instant roboting of the personality’21 are within reach of governments and private entities. In an imperceptible way, the citizen finds himself subject to State supervision (police), on public interest grounds, or under control of private interests for commercial purposes.

Furthermore, what is most worrying is that these enormous pressures on personal autonomy do not only have an external source. The privacy risks are something that is associated with the complexity of modern life and so are inseparable from digital networks. Without communication technologies one does not exist, one cannot participate in the community, but at the same time, technology is absorbed and felt as ‘Matrix’ technology, which dominates without the awareness of being dominated.

Unlike the ‘1984’ Orwellian Big Brother, the source of power lies within each one of us at the same time, it is something transcendent that is beyond control because it does not pursue individual life but simply waits until each user offers his/her life in bytes and bits.

It is true that the Internet never forgets22 because nothing is lost, everything is registered. But one cannot imagine, at this point, how humans will be defined when any action, from birth to death, is disclosed. Any movement, any word, any image, any heartbeat will be registered and easily reproduced. Life as we know it, which is largely based on the right to forget, will be a thing of the past. The current article 6 of the e-Privacy Directive (2002/58/EC, as amended by Directive 2009/136/EC), which provides for data to be erased or to be made anonymous when it is no longer needed, will be under strong pressure and data retention exceptions will become the rule.

Psychologists have even suggested the existence of a ‘Truman syndrome’, alluding to the Truman show movie, where Truman Burbank, played by Jim Carrey, sees his life broadcast live 24 hours a day on television for a worldwide audience.

These two processes – dispersion/reconstruction – lead to a few interesting informational paradoxes.

Informational paradoxes

A higher frequency of accesses derives greater exposure which, in turn, leads to further disclosure of private information. Access to online services increases the number of access points to several service providers and, as a consequence, increases the chance of intrusion. In fact, most online behaviours generate information and the exchange of information eventually has to address the question of recognition or the identity of the source of all that information.23

Moreover, the equivalence between the field of technical devices (technological domain) and the information field, allegedly hegemonic because it makes use of the universality of the networks,24 leads in the end to the domain of whoever uses the technology and accesses the information. Every step in the digital world is intensively scrutinized by technology which, normally, belongs or is controlled by a third party.

Indeed, the technological dependence extends the concept of communication not only to the ‘other’ or ‘others’, properly identified, but also to communication with instruments that collect data transmitted by personal technological devices, not always in a transparent manner. Even those areas that had been in the private sphere, such as areas of residence and work, are being increasingly equipped with sensors that record all human actions, and possibly interconnects that data with the outside world.

Communication is no longer confined to personal means like the telephone but to appliances, cars, computers, and so on. Communications are not purely ‘personal’ but between machines, operating in an automatic way, such as the case of a refrigerator that sends a message to the supermarket’s computer when the milk runs out to add this item to the shopping list.

This entails, at the same time that we will proceed to a phase of depersonalization of communication. Unlike the analogue world in which the predominant interpersonal contacts occur face to face, electronic communication places technological devices between the interlocutors – with the reduction of any information to ‘zeros’ and ‘ones’, the personal mark of communicative relationships becomes secondary. Technology replaces nature in the mediation between Man and reality.25

This raises a number of issues related to the control exercised by the installation of sensors and the control of stored information.

More participation, more exclusion

The ‘informational Leviathan-State’26 is growing, and therefore, Information Society is appropriately called surveillance society.