Law in the Internet Society

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KatharinaRogoschFirstEssay 1 - 23 Oct 2021 - Main.KatharinaRogosch
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Does the GDPR adequately protect individuals' privacy?

-- By KatharinaRogosch - 22 Oct 2021


In the modern world of technology, where internet mammoths such as Google and Facebook, collect large amounts of personal data, the regulation of the collection of such data is essential. The interconnected relationship between data and individuals’ privacy over their own data needs to be examined to understand whether the current framework can achieve its own aims. This requires a two-set analysis: first, an examination of the regulation of data privacy and whether the standards imposed actually result in said protection; and secondly, an evaluation as to whether privacy should be protected by other means that it currently is.

To aid in this analysis, the European General Data Protection Regulation (hereinafter “GDPR”) will be examined. This is due to the fact that it is one of the strictest data protection laws enacted worldwide, and an examination of such a strict privacy and data-protection standard should provide clarity as to whether adequate privacy protections have been achieved.

The General Data Protection Regulation

Within the European Union data protection is secured and regulated by the General Data Protection Regulation. The GDPR aims “to give citizens and residents of the European Union and the European Economic Area control over their personal data, and to simplify the regulatory environment for international business by fully harmonizing the national data laws of its member states”. However, the GDPR does not only concern privacy, rather its objectives relate to the “fundamental rights and freedoms of natural persons” surrounding the “processing and free movement of personal data”. Consequently, the GDPR also aims to address the rising power of Big Data practices and the “economic imbalance between [these companies] on one hand and consumers on the other”.

The GDPR addresses the power imbalance between data controllers, who derive significant commercial benefit from the use of data, and users who bear significant harms associated with the usage of their own data. The legislation does this by placing explicit consent and anonymization techniques at the core of data processing. However, by focusing on these two specific aspects, the European legislators construct “structural regulatory spaces that fail to understand the ongoing challenges in delivering acceptable and effective regulation”. By exclusively concentrating on consent and anonymization techniques as a way to ensure data privacy and security, the GDPR fails to address not only the issues these concepts create but also how these should be implemented by app developers.

There are two issues created by the GDPR regulation, and that consequently significantly affect individual users’ privacy and data. Firstly, by using individuals’ consent as the gatekeeper to the legal processing of data, the GDPR places heavy emphasis on internet platforms themselves to fulfill the necessary GDPR standards. While simply obtaining users’ consent to the processing of their personal data does not make the processing of such data lawful, the fact that it is up to internet organizations themselves to implement adequate privacy standards says very little in terms of the protection that such standards afford in reality. Secondly, the GDPR stipulates that when data is anonymized, the need for explicit consent of the processing of the collected data is no longer required. At its core, by placing emphasis on anonymization techniques, the GDPR aims to reduce harmful forms of identification by preventing the singling out of natural persons and their personal information. However, as Narayanan and Shmitikov’s Paper on De-anonymization of Large Datasets and Oberhauses’s article on anonymous browsing data underline, de-anonymization of large data sets is standard industry practice for a majority of internet platforms.

Is the GDPR the right standard for privacy protection?

As outlined above, there are several issues associated with using the GDPR as the standard for privacy protection, the two biggest ones being treating consent as the standard for privacy, and the ability to de-anonymize data. Despite these issues, there are a number of benefits associated with using GDPR as the standard for data protection, namely that it functions in what Profesor Moglen as part of his “The Union, May it Be Preserved” speech in a transactional sphere. While Professor Moglen sees this as a problematic quality of the GDPR, the fact that the GDPR functions as a transaction where users consent to collection and usage of their data as a “transaction” for which they receive the benefit of accessing internet platforms means that the regulation can easily be implemented by any type of corporation. The issue with the GDPR is that the standards of implementation are too lax, and upon drafting the GDPR in 2018 the impact of de-anonymization technologies was not sufficiently considered. One could argue that if amendments were implemented into the GDPR that would tackle the issues of de-anonymization technologies the current privacy issues would be adequately addressed. However, such an argument fails to address the fundamental power imbalance created by internet platforms such as Google, Yahoo, and Facebook, where individual users are not given a choice as to how their data is processed.

Instead of working within the confines of the GDPR as it exists currently, Professor Moglen argues that we need to challenge our basic assumption that privacy and our data is part of the “transaction”. To some extent this idea has merit, in that why should our own personal data be a transactional token by which our privacy is achieved? In this sense, Professor Moglen’s definition of privacy as “ecological” and “relational among people” rather than an issue of individual consent is one that seems to provide a stricter standard of privacy protection. While an ecological conception of privacy could provide a much stricter standard of individuals’ data protection, the means of achieving such protection are less concrete. Namely, what standard of privacy is going to be the baseline to which all protection is measured (if an ecological protection of privacy is adopted akin to environmental protection)?

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Revision 1r1 - 23 Oct 2021 - 00:27:28 - KatharinaRogosch
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