The future of privacy - Addressing singularities to identify bright-line rules that speak to us

To apprehend the future of privacy I have opted for a controlled exploration of the issue, mainly taking the form of delamination: an exploration or assessment of privacy in a broad sense is not the object of this reflection. The focus is on technology-related privacy. Is the future of (some aspects of privacy) dependent on the future of technology? What is then the future of technology? What technology brings the future and what future brings technology? We know technology changes rapidly and we, law and technology lawyers or privacy lawyers, update ourselves constantly, including on the various technology-related concepts that come to us from other industries. One author sees a hype cycle at work with machine learning and blockchain currently peaking in the ‘must understand’-lists of technology and big data having lost already all its appea

EU criminal law and fundamental rights

The chapter first offers a background analysis to EU fundamental rights law, recalling the historical affirmation of the protection of fundamental rights as a EU concern, and the important innovation brought about by the Lisbon Treaty (section 2) and the multiplicity of actors involved in the system of fundamental rights protection in the EU (section 3). The aim is to demonstrate that the EU indeed has an important tradition and a great number of actors involved in the field. Subsequently the chapter turns to the main instrument of protection of fundamental rights, namely the Charter of Fundamental Rights of the European Union (‘the Charter’). First, it explains its scope of application, and its interaction with other sources of fundamental rights protection, and it shows that the system is potentially very protective (section 4). Moving on, the chapter examines the practical application of the Charter, and its interaction with EU criminal law norms, demonstrating that in fact the Court of Justice of the European union (CJEU) tends to give precedence to the effectiveness of EU criminal law over fundamental rights (section 5). Furthermore, the chapter addresses the content of the Charter (section 6) and then goes deeper into the criminal law related provision in the Charter, in particular the presumption of innocence (section 7), the right to a fair trial (section 8), privacy and data protection (section 10), and proportionality and legality (section 10). The last section (section 11) provides some conclusive remarks, evaluating the interaction between fundamental rights and EU criminal law, and calling for a further refinement of this interaction

Huber, Marper and Others: Throwing new light on the shadows of suspicion. INEX Policy Brief No. 8, June 2010

The proliferation of large-scale databases containing personal information, and the multiple uses to which they can be put, can be highly problematic from the perspective of fundamental rights and freedoms. This paper discusses two landmark decisions that illustrate some of the risks linked to these developments and point to a better framing of such practices: the Heinz Huber v. Germany judgement, from the European Court of Justice, and the S. and Marper v. United Kingdom ruling, from the European Court of Human Rights. The paper synthesises the lessons to be learnt from such decisions. Additionally, it questions the impact of the logic of pure prevention that is being combined with other rationales in the design and management of databases. This Policy Brief is published in the context of the INEX project, which looks at converging and conflicting ethical values in the internal/external security continuum in Europe, and is funded by the Security Programme of DG Enterprise of the European Commission’s Seventh Framework Research Programme. For more information visit: www.inexproject.e

Human rights:A secular religion with legal crowbars. From Europe with hesitations

This contribution offers to steer a discussion on the constitutive stance of fundamental rights in Western legal systems. The story of the democratic constitutional state, a story of rule of law and human rights, is an already 250 year old utopia, which strangely persists despite long-standing patterns of slavery, war, torture, poverty, hunger, deportations, racism, and other unfavorable matters to human rights. This paper aims at questioning this perpetual paradox. After a historical assessment of human rights, we maintain that the traditional narrative emerges as the result of an interchangeable religious process: human rights as the gospel of a secular religion. Despite this, our perspectives on the rights apparatus can be adjusted by a more realistic vision of legal practices. Under certain conditions, human rights can function as legal crowbars in courts. With the crowbar metaphor, we adopt a constructive and pragmatic approach to human rights. Yet, what stands out is an expectation to move beyond the human rights axioms, rather than an endeavor to fix them. Ultimately, we suggest that other less toxic frameworks could replace traditional human rights narratives as constructs that may better realise our hopes

Predictive profiling and its legal limits:Effectiveness gone forever

We examine predictive group profiling in the Big Data context as an instrument of governmental control and regulation. We first define profiling by drawing some useful distinctions (section 6.1). We then discuss examples of predictive group profiling from policing (such as parole prediction methods taken from the us) and combatting fraud (the icov and syri systems in the Netherlands) (section 6.2). Three potential risks of profiling – the negative impact on privacy; social sorting and discrimination; and opaque decision-making – are discussed in section 6.3. We then turn to the legal framework. Is profiling by governmental agencies adequately framed? Are existing legal checks and balances sufficient to safeguard civil liberties? We discuss the relationship between profiling and the right to privacy (section 6.4) and between profiling and the prohibition on discrimination (section 6.5). The jurisprudence on the right to privacy clearly sets limits to the use of automated and predictive profiling. Profiling and data screening which interfere without distinction with the privacy of large parts of the population are disproportional. Applications need to have some link to concrete fact to be legitimate. An additional role is played by the prohibition of discrimination, which requires strengthening through the development of audit tools and discrimination-aware algorithms. We then discuss current safeguards in Dutch administrative, criminal procedure and data protection law (section 6.6), and witness a trend of weakening safeguards at the very moment when they should be applied with even more rigor. In our conclusion, we point to the tension between profiling and legal safeguards. These safeguards remain important and need to be overhauled to make them effective again. <br/