Naasongs.fun
ABSTRACT
This chapter focuses on some of the most relevant issues in today’s data protection: responsibility and jurisdiction are examined in the light of the principle of “privacy by design.” On one hand, both from the substantial and procedural points of view, national legal systems determine different rights and duties in the field of data protection. On the other hand, these divergences can be overcome to some extent, by preventing privacy infringements through the incorporation of data protection safeguards in information and communication technologies.
Although it is unlikely that privacy by design can offer the one-size-fits-all solution to the problems emerging in the field, it is plausible that the principle will be the key to understanding how today’s data protection issues are being handled. By embedding privacy safeguards in places and spaces, products, and processes, such as Information Systems in hospitals, video surveillance networks in public transport, or smart cards for biometric identifiers, the aim should be to strengthen people’s rights and widen the range of their choices. On this basis, we can avert both paternalism modeling individual behavior and chauvinism disdaining different national provisions of current legal systems
INTERNATIONAL CONFLICTS OF LAW
Jack Goldsmith is probably right when affirming that preliminary issues concerning the applicable 7 Responsibility, Jurisdiction, and the Future of Privacy by Design law in the international arena represent “the bread and butter” of contemporary lawyers (Goldsmith, 1998).
However, what the American scholar apparently missed is that the settled principles and traditional tools of both public and private international law are unable to fully meet the challenges set by the current transnational relationships. The conventional representation of the international legal order as grounded upon the principle of national sovereignty – so that in the absence of consensual international solutions, prevailing concepts of territorial sovereignty permit a nation to regulate the local effects of extraterritorial conduct” (Goldsmith, 1998, p. 1212) – is criticized because there would be no clear boundaries in cyberspace and, even less so, in today’s computer cloud-environments.
The ubiquity of information on the internet leads to the illegitimate situation where a state claims to regulate extraterritorial conduct by imposing norms on individuals who have no say in the decisions affecting them (thus jeopardizing the legitimacy of democratic rule of law). In addition, this situation determines the ineffectiveness of state action within the realm of cyberspace for citizens would be affected by conduct that the state is simply unable to regulate (Post, 2002).
PRIVACY AND DESIGN
More than a decade ago, in Code and Other Laws of Cyberspace, Lawrence Lessig lamented the poverty of research involving the impact of design on both social relationships and the functioning of legal systems (Lessig, 1999). In a few years, however, this gap has been filled by work on privacy (Ackerman and Cranor, 1999); universal usability (Shneiderman, 2000); informed consent (Friedman, Howe, and Felten, 2002); crime control and architecture (Katyal, 2002, 2003); social justice (Borning, Friedman, & Kahn, 2004); allegedly perfect self-enforcement technologies on the internet (Zittrain, 2007); and “design-based instruments for implementing a social policy that will aid our understanding of their ethical, legal and public policy complexities” (Yeung, 2007).
In particular, Karen Yeung has proposed a theory of legal design, by distinguishing between the subjects in which the design is embedded and the underlying design mechanisms or “modalities of design”. O
