Professor Michael Birnhack on Privacy
How can you better protect your Privacy?
Following Urban Times‘ attendance of the Intelligence Squared ‘If Conference‘, we approached the best speakers to get a series of interviews with them. Carolyn Brajkovich interviewed Professor Michael Birnhack of the Faculty of Law, Tel Aviv University and Associate Research Fellow at the Institute of Advanced Legal Studies, University of London about his research on the realms of privacy.
Prof Michael Birnhack, image courtesy of Michal Ben Ami
Carolyn: Can you explain the concept of Privacy by Design? How can we design privacy into technology?
Professor Birnhack: The idea of Privacy by Design (PbD) was first developed by Ontario’s Data Protection Commissioner, Dr Anne Cavoukian, in the late 1990s, but it is based on a longer tradition of a social understanding of technology. There is a popular view, that technology is just a tool, void of values. Some think that technology develops according to its own rules, as if it were made of thin air. The implications of this view are clear: technology cannot and should not be regulated. But this is an unconvincing view. Technology is made by human beings, corporations, academic institutions and governments. All of these are part of society. The designers of the technology reflect their values, whether they are aware of it or not, whether they so intend or not, in their design. Moreover, society, in its adoption or rejection of certain technologies, injects a social meaning into technology. The values that are embedded in technology are not fixed. We can debate them, as we often do. For example, a gun is a tool that can shoot bullets. It is a technology of power. It can be used for good purposes such as self-protection, or bad ones, such as crime. But it reflects a value of power, control and ultimately, killing.
Back to privacy: once we accept that technology is embedded with values, we can try and inject into it positive values, such as privacy. The idea is simple: in the design of a new technology, think of privacy and make sure it is protected, rather than try and fix it when it is too late, too expensive and difficult.
The European Union is currently contemplating ideas to amend its main Data Protection Directive, originally of 1995. One of the suggestions is to require, by law, the principle of PbD. But I think we need not (yet) take the obligatory path. The notion of PbD can gain support if users begin to demand it, and if designers learn about it. I believe that the main hurdles are discursive and cultural: to get designers think of privacy in broader terms than data security.
Will Smith running from the government, after the NSA, in an attempt to provide America with security from terrorists, gets a little megalomaniacal and tries to invade America's privacy and strip away civil liberties. Screenshot from 'Enemy of the State'.
Carolyn: We are an interconnected global society now, and talk to one another through online identities that can either be defined or anonymous. However, more and more of our social accounts and legislations are demanding the removal of privacy to maintain a “civil society”. What are the best methods that you can see our society adopting to ensure the provision of both privacy and safety in a world that seems to be more confrontational and dangerous?
Professor Birnhack: Indeed, privacy is too often juxtaposed with other important social values, such as national security, public order, or rights of other people, such as their intellectual property (especially copyright), one’s reputation etc. In many cases, this dichotomous framing is too cursory. Privacy is indeed an elusive concept: it is contingent on our social values, on technologies that provide privacy and at the same time limit our privacy and it varies from one place to another and over time. But nevertheless, I believe it is a fundamental human right that carries with it much value to our lives as individuals and as a civil community. The lack of privacy is often a sign of totalitarian societies.
I believe that we can achieve both privacy and security, instead of opting for an either/or approach. Privacy is not absolute. In proper cases we do need, as a society, to give up some privacy in order to achieve a rival goal. But we should design our laws, policies, technologies and social behaviour so to minimize these situations, only when necessary, and only once we ruled out alternative, less intrusive options.
For example, data can be collected for identification purposes, but there is no need for an ID card; commercial databases are subject to various duties, such as not using the data for purposes other than those to which the person – the data subject in legal jargon – has consented to. There are duties of data security, accountability and more.
The design of better policies, that strive to achieve, simultaneously, both seemingly conflicting ends, is not always easy. It requires creative thinking, nuancing policies, and on occasion, granular solutions.
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