ABSTRACT
The nature and depth of internet surveillance has been revealed to be very different from what had previously been publically acknowledged or politically debated. There are critical ways in which the current debate is miscast, misleading and confused. Privacy is portrayed as an individual right, in opposition to a collective need for security. Data gathering and surveillance are portrayed as having an impact only on this individual right to privacy, rather than on a broad spectrum of rights, including freedom of expression, of assembly and association, the prohibition of discrimination and more. The gathering and surveillance of ‘content’ is intrinsically more intrusive than that of ‘communications’ data or ‘metadata’. The impact of data gathering and surveillance is often portrayed as happening only at when data are examined by humans rather than when gathered, or when examined algorithmically. Commercial and governmental data gathering and surveillance are treated as separate and different, rather than intrinsically and inextricably linked. This miscasting has critical implications. When the debate is recast taking into account these misunderstandings, the bar for the justification of surveillance is raised and a new balance needs to be found, in political debate, in law, and in decision-making on the ground.Paul BernalUEA Law School, University of East Anglia, Norwich, UK
This data can reveal habits, preferences and tastes and can uncover, to a reasonable probability, religion, sexual preferences, political leanings and more. It can dig deep into personal lives. People use the internet to establish and support personal relationships, to find jobs, to bank, to shop, to gather the news, to decide where to go on holiday, to concerts, museums or football matches. Some use it for education and for religious observance checking the times and dates of festivals or details of dietary rules. There are very few areas of peoples lives that remain untouched by the internet.
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Furthermore, analytical methods through which more personal and private data can be derived from browsing habits have already been developed, and are continuing to be refined and extended, for example by the behavioural advertising industry. Significant amounts of money and effort are being spent in this direction it is a key part of the business models of Google, Facebook and others. The profiling and predictive capabilities will develop further both in scope and in accuracy in the future. psychological form, based on educated guesses and theoretical associations: it is mathematical profiling, based on correlations determined by comparisons of massive amounts of data. The techniques and technologies developed to profile for advertising can be applied just as easily to other forms of profiling, whether they be political, religious, ethnic or any other kind. Data gathering can therefore impact upon any aspect of a private life.31 This is not profiling in the conventional
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3.2. Article 9: freedom of thought, conscience and religion Everyone has the right to freedom of thought, conscience and religion 32 This kind of proling can also bring Article 9 into play. It can be possible to determine (to a reasonable probability) individuals religions, politics and philosophy, the languages they use and even their ethnic origins,33 and then use that information to monitor them both online and ofine. It could potentially be used to limit or control the activities of people that t within a particular religious outlook and it can also be used to limit the related rights to freedom of association and assembly. Although it could be seen as a stretch to suggest that such profiling might allow a profiler to know what someone is thinking, that, effectively, is its aim. Apple Google and Microsofts digital assistants, Siri, Now and Cortana respectively, all aim to predict what 253 254
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P. BERNAL you want to know.34 Indeed, it has been argued that Google and Facebook can know people better than they know themselves, as they are free from self-deception.35 From the perspective of the profiler (and the commercial profiler in particular) precise accuracy may not be crucial; a reasonable probability may be all that is needed. From the perspective of those being profiled, the situation is very different and problems may arise from both accurate and inaccurate profiling. A real dissident, for example, may be located and imprisoned by an accurate profile, while an innocent may be unfairly punished by an inaccurate profile.36 Further, as discussed in more depth in Section 3.6 below, there is a growing potential for discrimination on the basis of these profiles.
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