Privacy Rights

The advent of Generative AI, particularly through Large Language Models (LLMs) like ChatGPT and its successors, marks a paradigm shift in the AI landscape. Advanced LLMs exhibit multimodality, handling diverse data formats, thereby broadening their application scope. However, the complexity and emergent autonomy of these models introduce challenges in predictability and legal compliance. This paper analyses the legal and regulatory implications of Generative AI and LLMs in the European Union context, focusing on liability, privacy, intellectual property, and cybersecurity. It examines (...) the adequacy of the existing and proposed EU legislation, including the Artificial Intelligence Act (AIA), in addressing the challenges posed by Generative AI in general and LLMs in particular. The paper identifies potential gaps and shortcomings in the EU legislative framework and proposes recommendations to ensure the safe and compliant deployment of generative models. (shrink)

Respect appears to generate a puzzling self-other asymmetry: Respect for others can demand that we avoid knowledge of others or ignore that knowledge in deciding how we treat others. This demand for epistemic distancing lies behind the imperatives not to violate others’ privacy or to treat them paternalistically. Self-respect, in contrast, mandates that we pursue knowledge of ourselves and that we choose and act light of that self-knowledge. Individual agents thus do not have a duty to epistemically distance themselves from (...) themselves; a fortiori, they have self-regarding duties to reduce such distance. This article elaborates this asymmetry and offers a plausible solution to it, rooted in the distinctive importance that self-knowledge (and acting in the world on the basis of that self-knowledge) has for self-respecting rational agents: Self-respecting agents have reasons to have others defer to their ‘surfaces’ or self-presentations in order to inhibit making themselves vulnerable to others in ways that undermine their self-respect by subordinating their wills to the wills of others. A measure of control over what others know about us and over what they do with that knowledge thus undergirds self-respect by enabling self-knowledge to play the role that it should play in the lives of self-respecting agents. Epistemic distancing thus operates in concert with the ways in which self-respecting agents value and pursue epistemic intimacy with themselves. (shrink)

Higher education institutions are mining and analyzing student data to effect educational, political, and managerial outcomes. Done under the banner of “learning analytics,” this work can—and often does—surface sensitive data and information about, inter alia, a student’s demographics, academic performance, offline and online movements, physical fitness, mental wellbeing, and social network. With these data, institutions and third parties are able to describe student life, predict future behaviors, and intervene to address academic or other barriers to student success (however defined). Learning (...) analytics, consequently, raise serious issues concerning student privacy, autonomy, and the appropriate flow of student data. We argue that issues around privacy lead to valid questions about the degree to which students should trust their institution to use learning analytics data and other artifacts (algorithms, predictive scores) with their interests in mind. We argue that higher education institutions are paradigms of information fiduciaries. As such, colleges and universities have a special responsibility to their students. In this article, we use the information fiduciary concept to analyze cases when learning analytics violate an institution’s responsibility to its students. (shrink)

If I decide to disclose information about myself, this act can undermine other people’s ability to effectively conceal information about themselves. One case in point involves genetic information: if I share ‘my’ genetic information with others, I thereby also reveal genetic information about my biological relatives. Such dependencies are well-known in the privacy literature and are often referred to as ‘privacy dependencies’. Some take the existence of privacy dependencies to generate a moral duty to sometimes avoid sharing information about oneself. (...) If true, we argue, then it is sometimes justified for others to impose harm on the person sharing the information to prevent them from doing so. This is a highly revisionary implication. Hence, one must either endorse a highly revisionary view on what one may do to protect one’s privacy, or one must reject the view that privacy dependencies can be used to justify a moral duty that constrains choices about sharing information about oneself. (shrink)

This research explores how a person with whom information has been shared and, importantly, an artificial intelligence (AI) system used to deduce information from the shared data contribute to making the disclosure context private. The study posits that private contexts are constituted by the interactions of individuals in the social context of intersubjectivity based on trust. Hence, to make the context private, the person who is the trustee (i.e., with whom information has been shared) must fulfil trust norms. According to (...) the commitment account of trustworthiness, a person is trustworthy only if they satisfy the norm of competence. It is argued that a person using an AI system to answer a question is competent only if they are ex post justified in believing what has been delivered by the AI system. A person’s belief is justified in the doxastic sense only if the AI system is accurate. This feature of AI’s performance affects a person’s competence and, as a result, trustworthiness. The effect of AI on trust as an essential component of making the context private, and thus on privacy, means an AI system also impacts privacy. Therefore, a private context is constituted when the individual with whom the information is shared fulfils the competence norm and the AI system used for analysing the information is sufficiently accurate to adhere to this norm. The result of this research emphasises the significance of the relationship between individuals involved in information-sharing and how an AI system used for analysing that information impacts the relationship regarding making the context private, as well as how it impacts privacy. The findings of this research have significant implications for improving or ameliorating privacy regulations in light of trust. (shrink)

Digital data help data scientists and epidemiologists track and predict outbreaks of disease. Mobile phone GPS data, social media data, or other forms of information updates such as the progress of epidemics are used by epidemiologists to recognize disease spread among specific groups of people. Targeting groups as potential carriers of a disease, rather than addressing individuals as patients, risks causing harm to groups. While there are rules and obligations at the level of the individual, we have to reach a (...) stage in the development of data analytics where groups are protected as entities. This chapter offers a deeper examination of harms to the groups. (shrink)

Philosophy &Public Affairs, Volume 51, Issue 4, Page 413-449, Fall 2023.

This article examines how facial recognition technology reshapes the philosophical debate over the ethics of video surveillance. When video surveillance is augmented with facial recognition, the data collected is no longer anonymous, and the data can be aggregated to produce detailed psychological profiles. I argue that – as this non-anonymous data of people’s mundane activities is collected – unjust risks of harm are imposed upon individuals. In addition, this technology can be used to catalogue all who publicly participate in political, (...) religious, and socially stigmatised activities, and I argue that this would undermine central interests of liberal democracies. I examine the degree to which the interests of individuals and the societal interests of liberal democracies to maintain people’s obscurity while in public coincide with privacy interests, as popularly understood, and conclude that there is a practical need to articulate a novel right to obscurity to protect the interests of liberal democratic societies. (shrink)

In this paper, we defend what we call the ‘Hybrid View’ of privacy. According to this view, an individual has privacy if, and only if, no one else forms an epistemically warranted belief about the individual’s personal matters, nor perceives them. We contrast the Hybrid View with what seems to be the most common view of what it means to access someone’s personal matters, namely the Belief-Based View. We offer a range of examples that demonstrate why the Hybrid View is (...) more plausible than the Belief-Based View. Finally, we show how the Hybrid View generates a more plausible fit between the concept of privacy, and a (morally objectionable) violation of privacy. (shrink)

The 2010s were a golden age of information privacy research, but its policy accomplishments tell a mixed story. Despite significant progress on the development of privacy theory and compelling demonstrations of the need for privacy in practice, real achievements in privacy law and policy have been, at best, uneven. In this chapter, I outline three broad shifts in the way scholars (and, to some degree, advocates and policy makers) are approaching privacy and social media. First, a change in emphasis from (...) individual to structural approaches. Second, increasing attention to the political economy of privacy—especially the business models of information companies, such as social media platforms. And third, a deeper understanding of privacy’s role in a healthy digital public sphere. (shrink)

The potential to collect brain data more directly, with higher resolution, and in greater amounts has heightened worries about mental and brain privacy. In order to manage the risks to individuals posed by these privacy challenges, some have suggested codifying new privacy rights, including a right to “mental privacy.” In this paper, we consider these arguments and conclude that while neurotechnologies do raise significant privacy concerns, such concerns are—at least for now—no different from those raised by other well-understood data collection (...) technologies, such as gene sequencing tools and online surveillance. To better understand the privacy stakes of brain data, we suggest the use of a conceptual framework from information ethics, Helen Nissenbaum’s “contextual integrity” theory. To illustrate the importance of context, we examine neurotechnologies and the information flows they produce in three familiar contexts—healthcare and medical research, criminal justice, and consumer marketing. We argue that by emphasizing what is distinct about brain privacy issues, rather than what they share with other data privacy concerns, risks weakening broader efforts to enact more robust privacy law and policy. (shrink)

Throughout the 20th century, market capitalism was defended on parallel grounds. First, it promotes freedom by enabling individuals to exploit their own property and labor-power; second, it facilitates an efficient allocation and use of resources. Recently, however, both defenses have begun to unravel—as capitalism has moved into its “platform” phase. Today, the pursuit of allocative efficiency, bolstered by pervasive data surveillance, often undermines individual freedom rather than promoting it. And more fundamentally, the very idea that markets are necessary to achieve (...) allocative efficiency has come under strain. Even supposing, for argument’s sake, that the claim was true in the early 20th century when von Mises and Hayek pioneered it, advances in computing have rekindled the old “socialist calculation” debate. And this time around, markets—as information technology—are unlikely to have the upper hand. -/- All of this, we argue, raises an important set of governance questions regarding the political economy of the future. We focus on two: How much should our economic system prioritize freedom, and to what extent should it rely on markets? The arc of platform capitalism bends, increasingly, toward a system that neither prioritizes freedom nor relies on markets. And the dominant critical response, exemplified by Shoshana Zuboff’s work, has been to call for a restoration of market capitalism. Longer term, however, we believe it would be more productive to think about how “postmarket” economic arrangements might promote freedom—or better yet, autonomy—even more effectively than markets, and to determine the practical steps necessary to realize that possibility. (shrink)

Employers seeking to control employee behavior outside of working hours is nothing new. However, recent developments have extended efforts to control employee behavior into new areas, with new significance. Employers seek to control legal behavior by employees outside of working hours, to have significant influence over employee’s health-related behavior, and to monitor and control employee’s social media, even when this behavior has nothing to do with the workplace. In this article, I draw on the work of political theorists Jon Elster, (...) Gerald Gaus and Michael Walzer, and privacy scholars Daniel Solove and Anita Allen, to show what is wrong with this extension of employer control of employee’s outside of work behavior. I argue that there are ethical limits on the controls that employers may put on their employees’ out of work behavior, and that many of these limits should be enshrined into legal protections which would prevent employers from conditioning employment on the regulations criticized. -/- (Please note that the version of this paper on SSRN is a pre-publication version. Please cite and refer to the published version when possible.). (shrink)

This paper discusses the idea that the concept of privacy should be understood in terms of control. Three different attempts to spell out this idea will be critically discussed. The conclusion will be that the Source Control View on privacy is the most promising version of the idea that privacy is to be understood in terms of control.

All societies have to balance privacy claims with other moral concerns. However, while some concern for privacy appears to be a common feature of social life, the definition, extent and moral justifications for privacy differ widely. Are there better and worse ways of conceptualising, justifying, and managing privacy? These are the questions that lie in the background of this thesis. -/- My particular concern is with the ethical issues around privacy that are tied to the rise of new information and (...) communication technologies (henceforth “ICT”). The focus here is on technologies involved in processing personal data in its broadest sense, including “any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.” The issue of moral concern is commonly designated as that of 'data privacy'. -/- The first step is to consider why privacy matters, or ought to matter, in the first place. And here we run into our first difficulty, since both the conceptualisation of privacy and the justification for the right to privacy are matters for contention. On the one hand, we are animated by a moral concern for privacy in some sense; on the other, we lack the conceptual and moral resources for making sense of this concern or for promoting particular social policies and criticising others. This often-cited dichotomy and its ensuing confusion have been the central motivation for most of the philosophical literature on privacy – including this thesis. -/- In what follows, I will suggest a way out of the confusion that pervades the current debate on data privacy. I will essentially argue two claims: one, that the concept of (data) privacy is uniquely characterised by a particular context within which we exchange information; two, that because (data) privacy constitutes an intrinsic value, its moral concerns and justifications ought to be deliberated as such. -/- The first chapter sketches the current data privacy landscape by introducing a number of concepts and arguing the unique nature of the landscape. I argue that the traditional distinction between four kinds of privacy (physical, mental, decisional and informational) is no longer accurate, given the technological context that reduces, unifies and processes all aspects of people’s lives by means of digital data. In fact, to hold on to the distinction leads to a fundamental misconception of data privacy. I further argue that today’s distinction between data protection and data privacy runs the risk of ignoring the fact that the former is an inherent aspect of the latter. These arguments allow me to settle on a (provisional) definition of data privacy: controlling how data about identifiable people is processed by ICT. -/- Next, I draw a line between descriptive and normative accounts of data privacy, and explain why this book belongs to the latter category. After a brief discussion of the coherence and distinctiveness theses, and of the difference between instrumental and intrinsic theories of privacy, I introduce the problem of data privacy as a distinct, coherent, and intrinsic moral concern. Three arguments support this position: one, data privacy is a coherent moral concern because it is motivated by a singular moral concept; two, data privacy is a distinct moral concern because the privacy challenges we face today are of a fundamentally new nature – distinct from any moral concerns we’ve faced in the past; and three, data privacy is an intrinsic moral concern that is predominantly justified, not by what it instrumentally protects us from, but by what it intrinsically constitutes. -/- Chapter Two makes the case against a harm-based, consequentialist approach to data privacy. After a brief introduction to the basic tenets of consequentialism I discuss harm-based arguments in favour as well as against privacy. I explain how privacy may protect us against psychological distress, but at the same time constitute the source of that distress; how privacy may be necessary for the proper functioning of democratic societies, but at the same time provide a cloak for anti-social and immoral behaviour; and how privacy protects us against the improper use of our personal data by others, but at the same enables us to conceal information or spread false information about ourselves in ways that are harmful to others. Next, I argue that consequentialism essentially relies on two flawed presumptions – that we know what harm is, and that we know how to predict it – and discuss the controversies surrounding definitions and predictions of harm. This argument becomes especially pertinent in today’s rapidly changing technological context: we may guess, and make assumptions, perhaps even find correlations, but don’t really know or understand (yet) with any degree of certainty the harmful consequences today’s data privacy violations are causing or will eventually cause – if any. -/- I illustrate this with examples of recent data privacy violations, and with a brief overview of consequentialist arguments for and against data privacy. Those who invoke consequentialist arguments against data privacy claim that personal data is nothing more than a raw material that can be turned into something useful and valuable without harming anyone. Choosing to move fast and break things – a popular mantra that promotes the benefits of technological “permissionless innovation” over and above its risks and costs – they draw our attention to the many benefits free data flows generate. Those who rely on consequentialist arguments in favour of data privacy, on the other hand, insist on actual and potential misuse of personal data. Rather careful than sorry, they draw our attention to the urgent need to take back control and protect ourselves against data privacy violations – precisely because we don’t know which harm they may cause in the future. Others go one step further and argue that these violations are part of a broader ideology of power. -/- What Chapter Two demonstrates is that vague definitions, unreliable predictions and inconclusive allegations of harm from both sides of the debate perpetuate a stalemate that fails to produce morally defensible answers to our growing data privacy concerns. Deliberating about data privacy from a consequentialist perspective is a dead end. -/- Chapter Three proposes an alternative to the harm-based approach, namely that privacy is an intrinsic value that deserves moral protection for its own sake. After a brief account of what I take values to be, and why we have a need to protect them, I introduce the foundational value of respect for persons, and lay out my main argument in two steps. The conceptual component of my argument returns to the definition of data privacy I had temporarily settled on in Chapter One, but now with the added consideration of the particular context, and particular circumstances and attitudes, within which information is exchanged. This addition is crucial, as it reveals the fundamental value that is at stake in our data privacy concerns, namely the inherent value of each and every person, which we protect by upholding an ethical principle commonly known as the principle of respect for persons. It is for this reason that the violation of privacy cannot (only) be expressed in terms of harm. I further argue that the principle of respect for persons is consistent with, and in fact unthinkable without, some degree of privacy. -/- I reply to potential challenges to a value-based approach to data privacy by showing that (i) values and value trade-offs are fundamentally different from consequential benefits and cost-benefit analyses; (ii) the suspension of one value in favour of another is not inherently contradictory; what matters is morally defensible deliberation about values and valid individual consent; (iii) data privacy concerns cannot be reduced to other moral concerns and therefore deserve a specific, distinct protection. -/- Finally, because this is a thesis in applied ethics, I attempt an answer to the question as to how we ought to apply a value-based approach to practical data privacy concerns. I argue that a revised, three-pronged version of John Rawls’ reflective equilibrium, founded on the non-negotiable principle of respect for persons, is the best possible procedure to deliberate data privacy concerns in relation to other moral values. (shrink)

Trustworthiness is typically regarded as a desirable feature of national identification systems (NISs); but the variegated nature of the trustor communities associated with such systems makes it difficult to see how a single system could be equally trustworthy to all actual and potential trustors. This worry is accentuated by common theoretical accounts of trustworthiness. According to such accounts, trustworthiness is relativized to particular individuals and particular areas of activity, such that one can be trustworthy with regard to some individuals in (...) respect of certain matters, but not trustworthy with regard to all trustors in respect of every matter. The present article challenges this relativistic approach to trustworthiness by outlining a new account of trustworthiness, dubbed the expectation-oriented account. This account allows for the possibility of an absolutist (or one-place) approach to trustworthiness. Such an account, we suggest, is the approach that best supports the effort to develop NISs. To be trustworthy, we suggest, is to minimize the error associated with trustor expectations in situations of social dependency (commonly referred to as trust situations), and to be trustworthy in an absolute sense is to assign equal value to all expectation-related errors in all trust situations. In addition to outlining the features of the expectation-oriented account, we describe some of the implications of this account for the design, development, and management of trustworthy NISs. (shrink)

Surveillance studies scholars and privacy scholars have each developed sophisticated, important critiques of the existing data-driven order. But too few scholars in either tradition have put forward alternative substantive conceptions of a good digital society. This, I argue, is a crucial omission. Unless we construct new “sociotechnical imaginaries,” new understandings of the goals and aspirations digital technologies should aim to achieve, the most surveillance studies and privacy scholars can hope to accomplish is a less unjust version of the technology industry’s (...) own vision for the future. (shrink)

This chapter provides a high-level overview of key ethical issues raised by the use of surveillance technologies, such as digital contact tracing, disease surveillance, and vaccine passports, to combat the COVID-19 pandemic. To some extent, these issues are entirely familiar. I argue that they raise old questions in new form and with new urgency, at the intersection of information ethics, research ethics, and public health. Whenever we deal with data-driven technologies, we have to ask how they fare in relation to (...) important values like privacy, fairness, transparency, and accountability—values emphasized by information ethics scholars. Likewise, when such technologies put individuals at risk in order to drive scientific research and knowledge construction, we have to ask how they implicate values such as autonomy, beneficence and non-maleficence, and justice—values central to research ethics. And as researchers focusing on health information have long argued, when the data collected by these technologies pertain to individuals and public health, these ethical issues take on a special cast. -/- It is also true, however, that the pandemic has placed these questions in a new and revealing light. I highlight three insights from information ethics and research ethics that can help us navigate this difficult terrain. First, the value of privacy is instrumental, not absolute—there is nothing wrong with asking how to balance privacy against other important values. Second, privacy has both individual and social importance. Weighing privacy, on one hand, and public health, on the other, is not, therefore, a contest between individual and collective interests. Rather, it is an attempt to balance disparate public goods. Third, we ought to put these kinds of ethical decisions in the hands of third parties, rather than leaving them up to those who directly stand to benefit from them. In the case of pandemic surveillance technologies, this should mean more public, democratic oversight. (shrink)

Writing a college-application essay has become a rite of passage for high-school seniors in the U.S., one whose importance has expanded over time due to an increasingly competitive admissions process. Various commentators have noted the disturbing evolution of these essays over the years, with an ever-greater emphasis placed on obstacles overcome and traumas survived. How have we gotten to the point where college-application essays are all too frequently competitive-victimhood displays? Colleges have an understandable interest in the disadvantages their applicants may (...) have suffered, but this interest—and the awareness of it among both applicants and their advisors—has led to a “race to the bottom”: in order to thrive (or even survive) in a particular competitive context, participants are forced to continuously lower relevant standards in a game of one-upmanship. With college essays, the competition is among high-school seniors for admission, the one-upmanship is an ever-escalating effort to persuade admission committees of one’s greater disadvantage, and the relevant standards being lowered are honesty, privacy, and dignity—or so I shall argue. As we shall see, this particular race to the bottom imposes unequal costs on certain groups and has implications stretching well beyond collegiate admissions. (shrink)

In Vayena’s article, ‘direct-to-consumer (DTC) genomics on the scales of autonomy’, she claims that there may be a strong autonomy-based argument for permitting DTC genomic services. In this response, I point out how the diminishment of one’s genetic privacy can cause a relevant autonomy-related harm which must be balanced against the autonomy-related gains DTC services provide. By drawing on conceptual connections between privacy and the Razian conception of autonomy, I show that DTC genetic testing may decrease the range of valuable (...) options individuals possess, which impacts the extent to which would-be consumers can exercise their autonomy. (shrink)

Ambient assisted living technologies are increasingly presented and sold as essential smart additions to daily life and home environments that will radically transform the healthcare and wellness markets of the future. An ethical approach and a thorough understanding of all ethics in surveillance/monitoring architectures are therefore pressing. AAL poses many ethical challenges raising questions that will affect immediate acceptance and long-term usage. Furthermore, ethical issues emerge from social inequalities and their potential exacerbation by AAL, accentuating the existing access gap between (...) high-income countries and low and middle-income countries. Legal aspects mainly refer to the adherence to existing legal frameworks and cover issues related to product safety, data protection, cybersecurity, intellectual property, and access to data by public, private, and government bodies. Successful privacy-friendly AAL applications are needed, as the pressure to bring Internet of Things devices and ones equipped with artificial intelligence quickly to market cannot overlook the fact that the environments in which AAL will operate are mostly private. The social issues focus on the impact of AAL technologies before and after their adoption. Future AAL technologies need to consider all aspects of equality such as gender, race, age and social disadvantages and avoid increasing loneliness and isolation among, e.g. older and frail people. Finally, the current power asymmetries between the target and general populations should not be underestimated nor should the discrepant needs and motivations of the target group and those developing and deploying AAL systems. Whilst AAL technologies provide promising solutions for the health and social care challenges, they are not exempt from ethical, legal and social issues. A set of ELSI guidelines is needed to integrate these factors at the research and development stage. (shrink)

In this article, we identify three key design dimensions along which cryptocurrencies differ -- privacy, censorship-resistance, and consensus procedure. Each raises important normative issues. Our discussion uncovers new ways to approach the question of whether Bitcoin or other cryptocurrencies should be used as money, and new avenues for developing a positive answer to that question. A guiding theme is that progress here requires a mixed approach that integrates philosophical tools with the purely technical results of disciplines like computer science and (...) economics. Note: this article is the second entry within a two-part sequence on the Philosophy, Politics, and Economics of Cryptocurrency. (shrink)

Most online platforms are becoming increasingly algorithmically personalized. The question is if these practices are simply satisfying users preferences or if something is lost in this process. This article focuses on how to reconcile the personalization with the importance of being able to share cultural objects - including fiction – with others. In analyzing two concrete personalization examples from the streaming giant Netflix, several tendencies are observed. One is to isolate users and sometimes entirely eliminate shared world aspects. Another tendency (...) is to blur the boundary between shared cultural objects and personalized content, which can be misleading and disorienting. A further tendency is for personalization algorithms to be optimized to deceptively prey on desires for content that mirrors one’s own lived experience. Some specific - often minority targeting -“clickbait” practices received public blowback. These practices show disregard both for honest labeling and for our desires to have access and representation in a shared world. The article concludes that personalization tendencies are moving towards increasingly isolating and disorienting interfaces, but that platforms could be redesigned to support better social world orientation. (shrink)

Even though the idea that privacy is some kind of control is often presented as the standard view on privacy, there are powerful objections against it. The aim of this paper is to defend the control account of privacy against some particularly pressing challenges by proposing a new way to understand the relevant kind of control. The main thesis is that privacy should be analyzed in terms of source control, a notion that is adopted from discussions about moral responsibility.

Our world is under going an enormous digital transformation. Nearly no area of our social, informational, political, economic, cultural, and biological spheres are left unchanged. What can philosophy contribute as we try to under- stand and think through these changes? How does digitization challenge past ideas of who we are and where we are headed? Where does it leave our ethical aspirations and cherished ideals of democracy, equality, privacy, trust, freedom, and social embeddedness? Who gets to decide, control, and harness (...) the powers of digitization and for which purposes? Epistemologically, do most of us understand these new mediations – and thus fabrics – of our new world? Lastly – how is the new technological landscape shaping not only our living conditions but also our collective imaginary and our self-identities? (shrink)

Algorithmic governmentality is a new form of political governance interconnected with technology and computation. By coining the term “algorithmic governmentality,” Antoinette Rouvroy argues that this mode of governance reduces everything to data, and people are no longer individuals but dividuals (able to be divided) or readable data profiles. Implementing the concept of algorithmic governmentality, the current study analyses Project Itoh’s award-winning novel Harmony in terms of such relevant concepts as “subjectivity,” “infra-individuality” and “control,” as suggested by Rouvroy and colleagues. The (...) analysis further draws on Foucault’s ideas of “governmentality” and “neoliberalism” and Deleuze’s concepts of “dividuality” and “society of control.” In Itoh’s fictional world, the entire society is subject to the new medical government, which replaced the chaotic world with a perfect but harrowing benevolent society, eradicating disease, suicide and crime. As elucidated in this paper, despite the dominant controlling government, there is a hope for humans to regain and reestablish their subjectivity and give meaning to their own personality by defying the nihilistic computational system. (shrink)

The increasingly prominent role of digital technologies during the coronavirus pandemic has been accompanied by concerning trends in privacy and digital ethics. But more robust protection of our rights in the digital realm is possible in the future. -/- After surveying some of the challenges we face, I argue for the importance of diplomacy. Democratic countries must try to come together and reach agreements on minimum standards and rules regarding cybersecurity, privacy and the governance of AI.

The purpose of this survey was to gather individual’s attitudes and feelings towards privacy and the selling of data. A total (N) of 1,107 people responded to the survey. -/- Across continents, age, gender, and levels of education, people overwhelmingly think privacy is important. An impressive 82% of respondents deem privacy extremely or very important, and only 1% deem privacy unimportant. Similarly, 88% of participants either agree or strongly agree with the statement that ‘violations to the right to privacy are (...) one of the most important dangers that citizens face in the digital age.’ The great majority of respondents (92%) report having experienced at least one privacy breach. -/- People’s first concern when losing privacy is the possibility that their personal data might be used to steal money from them. Interestingly, in second place in the ranking of concerns, people report being concerned about privacy because ‘Privacy is a good in itself, above and beyond the consequences it may have.’ -/- People tend to feel that they cannot trust companies and institutions to protect their privacy and use their personal data in responsible ways. The majority of people believe that governments should not be allowed to collect everyone’s personal data. Privacy is thought to be a right that should not have to be paid for. (shrink)

In this review, we present some ethical imperatives observed in this pandemic from a data ethics perspective. Our exposition connects recurrent ethical problems in the discipline, such as, privacy, surveillance, transparency, accountability, and trust, to broader societal concerns about equality, discrimination, and justice. We acknowledge data ethics role as significant to develop technological, inclusive, and pluralist societies. - - - Resumen: En esta revisión, exponemos algunos de los imperativos éticos observados desde la ética de datos en esta pandemia. Nuestra exposición (...) busca conectar problemas éticos típicos dentro de esta disciplina, a saber, privacidad, vigilancia, transparencia, responsabilidad y confianza, con preocupaciones a nivel social relacionadas con la igualdad, discrimi nación y justicia. Consideramos que la ética de datos tiene un rol significativo para desarrollar sociedades tecnificadas, inclusivas y pluralistas. (shrink)

A standard account of privacy says that it is essentially a kind of control over personal information. Many privacy scholars have argued against this claim by relying on so-called threatened loss cases. In these cases, personal information about an agent is easily available to another person, but not accessed. Critics contend that control accounts have the implausible implication that the privacy of the relevant agent is diminished in threatened loss cases. Recently, threatened loss cases have become important because Edward Snowden’s (...) revelation of how the NSA and GCHQ collected Internet and mobile phone data presents us with a gigantic, real-life threatened loss case. In this paper, I will defend the control account of privacy against the argument that is based on threatened loss cases. I will do so by developing a new version of the control account that implies that the agents’ privacy is not diminished in threatened loss cases. (shrink)

Traditional arguments for privacy in public suggest that intentionally public activities, such as political speech, do not deserve privacy protection. In this article, I develop a new argument for the view that surveillance of intentionally public activities should be limited to protect the specific good that this context provides, namely democratic legitimacy. Combining insights from Helen Nissenbaum’s contextualism and Jürgen Habermas’s theory of the public sphere, I argue that strategic surveillance of the public sphere can undermine the capacity of citizens (...) to freely deliberate in public and therefore conflicts with democratic self-determination. (shrink)

Public health scholars and public health officials increasingly worry about health-related misinformation online, and they are searching for ways to mitigate it. Some have suggested that the tools of digital influence are themselves a possible answer: we can use targeted, automated digital messaging to counter health-related misinformation and promote accurate information. In this commentary, I raise a number of ethical questions prompted by such proposals—and familiar from the ethics of influence and ethics of AI—highlighting hidden costs of targeted digital messaging (...) that ought to be weighed against the health benefits they promise. (shrink)

This paper is an overview about the state of privacy and power shifts during the pandemic, and the privacy challenges ahead.

The first few years of the 21st century were characterised by a progressive loss of privacy. Two phenomena converged to give rise to the data economy: the realisation that data trails from users interacting with technology could be used to develop personalised advertising, and a concern for security that led authorities to use such personal data for the purposes of intelligence and policing. In contrast to the early days of the data economy and internet surveillance, the last few years have (...) witnessed a rising concern for privacy. As bad data practices have come to light, citizens are starting to understand the real cost of using online digital technologies. Two events stamped 2018 as a landmark year for privacy: the Cambridge Analytica scandal, and the implementation of the European Union’s General Data Protection Regulation (GDPR). The former showed the extent to which personal data has been shared without data subjects’ knowledge and consent and many times for unacceptable purposes, such as swaying elections. The latter inaugurated the beginning of robust data protection regulation in the digital age. Getting privacy right is one of the biggest challenges of this new decade of the 21st century. The past year has shown that there is still much work to be done on privacy to tame the darkest aspects of the data economy. As data scandals continue to emerge, questions abound as to how to interpret and enforce regulation, how to design new and better laws, how to complement regulation with better ethics, and how to find technical solutions to data problems. The aim of the research project Data, Privacy, and the Individual is to contribute to a better understanding of the ethics of privacy and of differential privacy. The outcomes of the project are seven research papers on privacy, a survey, and this final report, which summarises each research paper, and goes on to offer a set of reflections and recommendations to implement best practices regarding privacy. (shrink)

Today’s ethics of privacy is largely dedicated to defending personal information from big data technologies. This essay goes in the other direction; it considers the struggle to be lost, and explores two strategies for living after privacy is gone. First, total exposure embraces privacy’s decline, and then contributes to the process with transparency. All personal information is shared without reservation. The resulting ethics is explored through a big data version of Robert Nozick’s Experience Machine thought experiment. Second, transient existence responds (...) to privacy’s loss by ceaselessly generating new personal identities, which translates into constantly producing temporarily unviolated private information. The ethics is explored through Gilles Deleuze’s metaphysics of difference applied in linguistic terms to the formation of the self. Comparing the exposure and transience alternatives leads to the conclusion that today’s big data reality splits the traditional ethical link between authenticity and freedom. Exposure provides authenticity, but negates human freedom. Transience provides freedom, but disdains authenticity. (shrink)

Today’s ethics of privacy is largely dedicated to defending personal information from big data technologies. This essay goes in the other direction; it considers the struggle to be lost, and explores two strategies for living after privacy is gone. First, total exposure embraces privacy’s decline, and then contributes to the process with transparency. All personal information is shared without reservation. The resulting ethics is explored through a big data version of Robert Nozick’s Experience Machine thought experiment. Second, transient existence responds (...) to privacy’s loss by ceaselessly generating new personal identities, which translates into constantly producing temporarily unviolated private information. The ethics is explored through Gilles Deleuze’s metaphysics of difference applied in linguistic terms to the formation of the self. Comparing the exposure and transience alternatives leads to the conclusion that today’s big data reality splits the traditional ethical link between authenticity and freedom. Exposure provides authenticity, but negates human freedom. Transience provides freedom, but disdains authenticity. (shrink)

Despite widespread agreement that privacy in the context of education is important, it can be difficult to pin down precisely why and to what extent it is important, and it is challenging to determine how privacy is related to other important values. But that task is crucial. Absent a clear sense of what privacy is, it will be difficult to understand the scope of privacy protections in codes of ethics. Moreover, privacy will inevitably conflict with other values, and understanding the (...) values that underwrite privacy protections is crucial for addressing conflicts between privacy and institutional efficiency, advising efficacy, vendor benefits, and student autonomy. -/- My task in this paper is to seek a better understanding of the concept of privacy in institutional research, canvas a number of important moral values underlying privacy generally (including several that are explicit in the AIR Statement), and examine how those moral values should bear upon institutional research by considering several recent cases. (shrink)

Since 2016, when the Facebook/Cambridge Analytica scandal began to emerge, public concern has grown around the threat of “online manipulation”. While these worries are familiar to privacy researchers, this paper aims to make them more salient to policymakers — first, by defining “online manipulation”, thus enabling identification of manipulative practices; and second, by drawing attention to the specific harms online manipulation threatens. We argue that online manipulation is the use of information technology to covertly influence another person’s decision-making, by targeting (...) and exploiting their decision-making vulnerabilities. Engaging in such practices can harm individuals by diminishing their economic interests, but its deeper, more insidious harm is its challenge to individual autonomy. We explore this autonomy harm, emphasising its implications for both individuals and society, and we briefly outline some strategies for combating online manipulation and strengthening autonomy in an increasingly digital world. (shrink)

Most people are completely oblivious to the danger that their medical data undergoes as soon as it goes out into the burgeoning world of big data. Medical data is financially valuable, and your sensitive data may be shared or sold by doctors, hospitals, clinical laboratories, and pharmacies—without your knowledge or consent. Medical data can also be found in your browsing history, the smartphone applications you use, data from wearables, your shopping list, and more. At best, data about your health might (...) end up in the hands of researchers on whose good will we depend to avoid abuses of power.2 Most likely, it will end up with data brokers who might sell it to a future employer, or an insurance company, or the government. At worst, your medical data may end up in the hands of criminals eager to commit extortion or identity theft. In addition to data harms related to exposure and discrimination, the collection of sensitive data by powerful corporations risks the creation of data monopolies that can dominate and condition access to health care. -/- This chapter aims to explore the challenge that big data brings to medical privacy. Section I offers a brief overview of the role of privacy in medical settings. I define privacy as having one’s personal information and one’s personal sensorial space (what I call autotopos) unaccessed. Section II discusses how the challenge of big data differs from other risks to medical privacy. Section III is about what can be done to minimise those risks. I argue that the most effective way of protecting people from suffering unfair medical consequences is by having a public universal healthcare system in which coverage is not influenced by personal data (e.g., genetic predisposition, exercise habits, eating habits, etc.). (shrink)

In Québec, the Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information provides an exception to transparency to most public institutions where public health research is conducted by allowing them to not disclose their uses of personal data. This exceptionalism is ethically problematic due to important concerns and we argue that all those who conduct research should be transparent and accountable for the work they do in the public interest.

This paper examines whether American parents legally violate their children’s privacy rights when they share embarrassing images of their children on social media without their children’s consent. My inquiry is motivated by recent reports that French authorities have warned French parents that they could face fines and imprisonment for such conduct, if their children sue them once their children turn 18. Where French privacy law is grounded in respect for dignity, thereby explaining the French concerns for parental “over-sharing,” I show (...) that there are three major legal roadblocks for such a case to succeed in US law. First, US privacy tort law largely only protects a person’s image where the person has a commercial interest in his or her image. Secondly, privacy tort laws are subject to constitutional constraints respecting the freedom of speech and press. Third, American courts are reluctant to erode parental authority, except in cases where extraordinary threats to children’s welfare exist. I argue that while existing privacy law in the US is inadequate to offer children legal remedy if their parents share their embarrassing images of them without their consent, the dignity-based concerns of the French should not be neglected. I consider a recent proposal to protect children’s privacy by extending to them the “right to be forgotten” online, but I identify problems in this proposal, and argue it is not a panacea to the over-sharing problem. I conclude by emphasizing our shared social responsibilities to protect children by teaching them about the importance of respecting one another’s privacy and dignity in the online context, and by setting examples as responsible users of internet technologies. (shrink)

Current technology and surveillance practices make behaviors traceable to persons in unprecedented ways. This causes a loss of anonymity and of many privacy measures relied on in the past. These de facto privacy losses are by many seen as problematic for individual psychology, intimate relations and democratic practices such as free speech and free assembly. I share most of these concerns but propose that an even more fundamental problem might be that our very ability to act as autonomous and purposive (...) agents relies on some degree of privacy, perhaps particularly as we act in public and semi-public spaces. I suggest that basic issues concerning action choices have been left largely unexplored, due to a series of problematic theoretical assumptions at the heart of privacy debates. One such assumption has to do with the influential conceptualization of privacy as pertaining to personal intimate facts belonging to a private sphere as opposed to a public sphere of public facts. As Helen Nissenbaum has pointed out, the notion of privacy in public sounds almost like an oxymoron given this traditional private-public dichotomy. I discuss her important attempt to defend privacy in public through her concept of ‘contextual integrity.’ Context is crucial, but Nissenbaum’s descriptive notion of existing norms seems to fall short of a solution. I here agree with Joel Reidenberg’s recent worries regarding any approach that relies on ‘reasonable expectations’ . The problem is that in many current contexts we have no such expectations. Our contexts have already lost their integrity, so to speak. By way of a functional and more biologically inspired account, I analyze the relational and contextual dynamics of both privacy needs and harms. Through an understanding of action choice as situated and options and capabilities as relational, a more consequence-oriented notion of privacy begins to appear. I suggest that privacy needs, harms and protections are relational. Privacy might have less to do with seclusion and absolute transactional control than hitherto thought. It might instead hinge on capacities to limit the social consequences of our actions through knowing and shaping our perceptible agency and social contexts of action. To act with intent we generally need the ability to conceal during exposure. If this analysis is correct then relational privacy is an important condition for autonomic purposive and responsible agency—particularly in public space. Overall, this chapter offers a first stab at a reconceptualization of our privacy needs as relational to contexts of action. In terms of ‘rights to privacy’ this means that we should expand our view from the regulation and protection of the information of individuals to questions of the kind of contexts we are creating. I am here particularly interested in what I call ‘unbounded contexts’, i.e. cases of context collapses, hidden audiences and even unknowable future agents. (shrink)

Standing is a peculiar norm, allowing for deflecting that is rejecting offhand and without deliberation interventions such as directives. Directives are speech acts that aim to give directive-reasons, which are reason to do as the directive directs because of the directive. Standing norms, therefore, provide for deflecting directives regardless of validity or the normative weight of the rejected directive. The logic of the normativity of standing is, therefore, not the logic of invalidating directives or of competing with directive-reasons but of (...) ‘exclusionary permission’. That is, standing norms provide for permission to exclude from practical deliberation directive-reasons if given without the requisite standing, regardless of their normative weight. As such, standing is a type of second-order norm. Numerous everyday practices involve the deflection of directives, such as pervasive practices of deflecting hypocritical and officious directives. Of various possible models, the one that best captures the normative structure of these practices of deflection is the standing model. Accordingly, the normativity of standing is pervasive in our everyday practices. Establishing that standing, although a neglected philosophical idea, is a significant and independent normative concept. (shrink)

In discussions of state surveillance, the values of privacy and security are often set against one another, and people often ask whether privacy is more important than national security.2 I will argue that in one sense privacy is more important than national security. Just what more important means is its own question, though, so I will be more precise. I will argue that national security rationales cannot by themselves justify some kinds of encroachments on individual privacy (including some kinds that (...) the United States has conducted). Specifically, I turn my attention to a recent, well publicized, and recently amended statute (section 215 of the USA Patriot Act3), a surveillance program based on that statute (the National Security Agency’s bulk metadata collection program), and a recent change to that statute that addresses some of the public controversy surrounding the surveillance program (the USA Freedom Act).4 That process (a statute enabling surveillance, a program abiding by that statute, a public controversy, and a change in the law) looks like a paradigm case of law working as it should; but I am not so sure. While the program was plausibly legal, I will argue that it was morally and legally unjustifiable. Specifically, I will argue that the interpretations of section 215 that supported the program violate what Jeremy Waldron calls “legal archetypes,”5 and that changes to the law illustrate one of the central features of legal archetypes and violation of legal archetypes. The paper proceeds as follows: I begin in Part 1 by setting out what I call the “basic argument” in favor of surveillance programs. This is strictly a moral argument about the conditions under which surveillance in the service of national security can be justified. In Part 2, I turn to section 215 and the bulk metadata surveillance program based on that section. I will argue that the program was plausibly legal, though based on an aggressive, envelope-pushing interpretation of the statute. I conclude Part 2 by describing the USA Freedom Act, which amends section 215 in important ways. In Part 3, I change tack. Rather than offering an argument for the conditions under which surveillance is justified (as in Part 1), I use the discussion of the legal interpretations underlying the metadata program to describe a key ambiguity in the basic argument, and to explain a distinct concern in the program. Specifically that it undermines a legal archetype. Moreover, while the USA Freedom Act does not violate legal archetypes, and hence meets a condition for justifiability, it helps illustrate why the bulk metadata program did violate archetypes. (shrink)

“Big Data” and data analytics affect all of us. Data collection, analysis, and use on a large scale is an important and growing part of commerce, governance, communication, law enforcement, security, finance, medicine, and research. And the theme of this symposium, “Individual and Informational Privacy in the Age of Big Data,” is expansive; we could have long and fruitful discussions about practices, laws, and concerns in any of these domains. But a big part of the audience for this symposium is (...) students and faculty in higher education institutions (HEIs), and the subject of this paper is data analytics in our own backyards. Higher education learning analytics (LA) is something that most of us involved in this symposium are familiar with. Students have encountered LA in their courses, in their interactions with their law school or with their undergraduate institutions, instructors use systems that collect information about their students, and administrators use information to help understand and steer their institutions. More importantly, though, data analytics in higher education is something that those of us participating in the symposium can actually control. Students can put pressure on administrators, and faculty often participate in university governance. Moreover, the systems in place in HEIs are more easily comprehensible to many of us because we work with them on a day-to-day basis. Students use systems as part of their course work, in their residences, in their libraries, and elsewhere. Faculty deploy course management systems (CMS) such as Desire2Learn, Moodle, Blackboard, and Canvas to structure their courses, and administrators use information gleaned from analytics systems to make operational decisions. If we (the participants in the symposium) indeed care about Individual and Informational Privacy in the Age of Big Data, the topic of this paper is a pretty good place to hone our thinking and put into practice our ideas. (shrink)

The public constitutes a major stakeholder in the debate about, and resolution of privacy and ethical The public constitutes a major stakeholder in the debate about, and resolution of privacy and ethical about Big Data research seriously and how to communicate messages designed to build trust in specific big data projects and the institution of science in general. This chapter explores the implications of various examples of engaging the public in online activities such as Wikipedia that contrast with “Notice and (...) Consent” forms and offers models for scientists to consider when approaching their potential subjects in research. Drawing from Lessig, Code and Other Laws of Cyberspace, the chapter suggests that four main regulators drive the shape of online activity: Code (or Architecture), Laws, Markets, and Norms. Specifically, scientists should adopt best practices in protecting computerized Big Data (Code), remain completely transparent about their data management practices (Law), make smart choices when deploying digital solutions that place a premium on information protection (Market), and, critically, portray themselves to the public as seriously concerned with protecting the privacy of persons and security of data (Norms). The community of Big Data users and collectors should remember that such data are not just “out there” somewhere but are the intimate details of the lives of real persons who have just as deep an interest in protecting their privacy as they do in the good work that is conducted with such data. (shrink)

Recent disclosures suggest that many governments apply indiscriminate mass surveillance technologies that allow them to capture and store a massive amount of communications data belonging to citizens and non-citizens alike. This article argues that traditional liberal critiques of government surveillance that center on an individual right to privacy cannot completely capture the harm that is caused by such surveillance because they ignore its distinctive political dimension. As a complement to standard liberal approaches to privacy, the article develops a critique of (...) surveillance that focuses on the question of political power in the public sphere. (shrink)

Foucault’s disciplinary society and his notion of panopticism are often invoked in discussions regarding electronic surveillance. Against this use of Foucault, I argue that contemporary trends in surveillance technology abstract human bodies from their territorial settings, separating them into a series of discrete flows through what Deleuze will term, the surveillant assemblage. The surveillant assemblage and its product, the socially sorted body, aim less at molding, punishing and controlling the body and more at triggering events of in- and ex-clusion from (...) life opportunities. The meaning of the body as monitored by latest generation vision technologies formed from machine only surveillance has been transformed. Such a body is no longer disciplinary in the Foucauldian sense. It is a virtual/flesh interface broken into discrete data flows whose comparison and breakage generate bodies as both legible and eligible (or illegible). (shrink)

A xurisprudencia constitucional española (STC 37/2011, de 28 de marzo, entre outras) ten establecido como fundamento do consentimento informado o dereito á integridade física e moral (art. 15 CE). O Tribunal Constitucional configura o consentimento informado como un deber de abstención do profesional sanitario, é dicir, como unha negación da competencia do profesional sanitario na terminoloxía de Hohfeld. Así pois, o consentimento informado queda conformado como un dereito negativo ou de defensa, polo que concibilo como liberdade xurídica ou facultade de (...) autodeterminación positiva esixiría a revisión do seu fundamento constitucional. O presente artigo pretende precisamente revisar a natureza iusfundamental do consentimento informado a partir da obra de W.N. Hohfeld e Robert Alexy. (shrink)

Disputes at the intersection of national security, surveillance, civil liberties, and transparency are nothing new, but they have become a particularly prominent part of public discourse in the years since the attacks on the World Trade Center in September 2001. This is in part due to the dramatic nature of those attacks, in part based on significant legal developments after the attacks (classifying persons as “enemy combatants” outside the scope of traditional Geneva protections, legal memos by White House counsel providing (...) rationale for torture, the USA Patriot Act), and in part because of the rapid development of communications and computing technologies that enable both greater connectivity among people and the greater ability to collect information about those connections. -/- One important way in which these questions intersect is in the controversy surrounding bulk collection of telephone metadata by the U.S. National Security Agency. The bulk metadata program (the “metadata program” or “program”) involved court orders under section 215 of the USA Patriot Act requiring telecommunications companies to provide records about all calls the companies handled and the creation of database that the NSA could search. The program was revealed to the general public in June 2013 as part of the large document leak by Edward Snowden, a former contractor for the NSA. -/- A fair amount has been written about section 215 and the bulk metadata program. Much of the commentary has focused on three discrete issues. First is whether the program is legal; that is, does the program comport with the language of the statute and is it consistent with Fourth Amendment protections against unreasonable searches and seizures? Second is whether the program infringes privacy rights; that is, does bulk metadata collection diminish individual privacy in a way that rises to the level that it infringes persons’ rights to privacy? Third is whether the secrecy of the program is inconsistent with democratic accountability. After all, people in the general public only became aware of the metadata program via the Snowden leaks; absent those leaks, there would have not likely been the sort of political backlash and investigation necessary to provide some kind of accountability. -/- In this chapter I argue that we need to look at these not as discrete questions, but as intersecting ones. The metadata program is not simply a legal problem (though it is one); it is not simply a privacy problem (though it is one); and it is not simply a secrecy problem (though it is one). Instead, the importance of the metadata program is the way in which these problems intersect and reinforce one another. Specifically, I will argue that the intersection of the questions undermines the value of rights, and that this is a deeper and more far-reaching moral problem than each of the component questions. (shrink)