Virtuality and Capabilities in a World of Ambient Intelligence: New Challenges to Privacy and Data Protection

213 Pages·2016·3.25 MB·English

by  Luiz Costa (auth.)

Law, Governance and Technology Series 32
Luiz Costa
Virtuality and
Capabilities in a
World of Ambient
Intelligence
New Challenges to Privacy and Data
Protection
Law, Governance and Technology Series
Volume 32
Series editor
Serge Gutwirth
Brussel , Belgium
I ssues in Privacy and Data Protection aims at publishing peer reviewed scientifi c
manuscripts that focus upon issues that engage into an analysis or refl exion related
to the consequences of scientifi c and technological developments upon the private
sphere, the personal autonomy and the self-construction of humans with data
protection and privacy as anchor points. The objective is to publish both disciplinary,
multidisciplinary and interdisciplinary works on questions that relate to experiences
and phenomena that can or could be covered by legal concepts stemming from the
law regarding the protection of privacy and/or the processing of personal data. Since
both the development of science and technology, and in particular information
technology (ambient intelligence, robotics, artifi cial intelligence, knowledge
discovery, data mining, surveillance, etc.), and the law on privacy and data protection
are in constant frenetic mood of change (as is clear from the many legal confl icts
and reforms at hand), we have the ambition to reassemble a series of highly
contemporary and forward-looking books, wherein cutting edge issues are
analytically, conceptually and prospectively presented.
More information about this series at h ttp://www.springer.com/series/8808
Luiz Costa
Virtuality and Capabilities
in a World of Ambient
Intelligence
New Challenges to Privacy and Data
Protection
Luiz Costa
Faculté de Droit (Visiting Researcher)
University of Namur, CRIDS
Namur , Belgium
ISSN 2352-1902 ISSN 2352-1910 (electronic)
Law, Governance and Technology Series
ISBN 978-3-319-39197-7 ISBN 978-3-319-39198-4 (eBook)
DOI 10.1007/978-3-319-39198-4
Library of Congress Control Number: 2016949387
© Springer International Publishing Switzerland 2016
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Printed on acid-free paper
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To Ribamar and Delfi na
To Raquel

Foreword
T hey are theses you would like to have written yourself: they fi t with your own
refl ections, even if these refl ections are still immature and you are unable to express
them correctly and precisely; reading through it, the thesis constitutes a clear dem-
onstration or, better, an illumination of your confused ideas and anticipations.
If furthermore, the thesis offers you delicious moments of intellectual adventure
with its author, you feel you are the most satisfi ed man. Thanks Luiz for these
moments. I regret not to have had more time to spend with you but I know that
Professor Antoinette Rouvroy was taking over from me as I was closing my door.
S tarting this adventure with you I had two vague convictions more than certain-
ties and you accepted the task of scrutinizing them. The fi rst one was my non-
comfort after the decision of the EU Charter on Human Rights to separate, at least
as regards their enactment, two concepts: privacy and data protection and to neglect
their deep interrelationships despite the fact that data protection might not be cor-
rectly defi ned and circumvented if one doesn’t take care of its root: privacy. The
second one was interlinked with this fi rst one. After having read Amartya Sen’s
articles and books about his theory of “capabilities”, I was convinced that privacy
has something to do with that theory and perhaps was a legal and ethical translation
of it. I saw that assimilation as a way to reject the individualistic approach of privacy
conceived more as a defence of the individuals (conceived as a liberal subject) fac-
ing society’s invasion and to envisage privacy more as a concept allowing the devel-
opment of our identity within a determined and democratic society and where the
development of these personal capabilities within an information society is also a
task for our government at the end of a deliberative process.
T o this extent, Luiz’s thesis has defi nitively contributed to reinforcing my con-
victions. The fi rst part of the thesis analyzes the concept of “Ambient Intelligence”
and its present and foreseeable indefi nite applications. By situating his refl ections
on artifi cial intelligence as a radical transformation of the information and commu-
nication technologies’ social power over the individual, the author underlines the
unprecedented prediction and preemption capabilities of certain actors through big
data systems. It underlines the normalization and the potential manipulation by cer-
tain actors of human behaviour. One knows the Google CEO’s assertion: ‘I t will
vii
viii Foreword
become very diffi cult for people to see or consume something that has not in some
sense been tailored for him’ or Amazon’s: ‘ Amazon wants to ship your package
before you buy it.’ Developing Rouvroy’s theory of “algorithmic governmentality”,
the author follows her thesis about the negative consequences of this governmental-
ity which, due to their opacity, are making decisions incontestable under a false
appearance of mathematical truth and making structural injustices less visible.
Perhaps Luiz’s depiction of our information society is too dark. It might not be
fair to denunciate unilaterally the input of our ICTs to the development of our liber-
ties. The Internet and ambient intelligence open the way to people “without bor-
ders”, able to give to his or her speech an international and unprecedented dimension.
It must be clear that the Internet liberates us from traditional normativities: “within
the Internet clouds I feel free”. I am able to build up my own personality by com-
municating with others and to discover the knowledge generated by the whole of
humanity. In the same sense, we underline that ambient intelligence like the brain
computer interfaces creates opportunities for dialogues with things that might be
put at our service. Body implants will increase our human potentialities and tomor-
row bioengineering techniques will authorize an enhanced man.
N evertheless, these technical advances, even if from a certain point of view they
are increasing our liberties, at the same time are creating huge risks for them and are
raising fundamental questions other than the traditional ones concerning the protec-
tion of our intimacy. So new issues, more salient and crucial, are now entering the
discussion like the question of justice as regards access to these technologies, the
risk of a two-tier society, the question of democracy when we consider economico-
technical broadly non transparent governmentality and the question of social justice
in relation to the consequence of profi ling applications rejecting a priori and without
appeal certain categories of population. The question of dignity in the Kantian sense
of the word is also to be raised since it is clear that, analysed through profi ling tech-
niques that use data collected from a large number of sources, the human is defi ni-
tively not considered as an end as such but purely as a means put at the service of
marketing or security logic. Algorithmic governmentality operates without the pos-
sibility for the human beings, who are subject to it, to challenge the reasoning
behind what is proposed as a truth, precluding any discussion, criticism or debate.
How do we face these new challenges? Is privacy an adequate concept to answer to
all these challenges and, if yes, with which meaning and how do we envisage the
relationship between data protection and privacy, which are considered apparently
as at least two separate human liberties by the EU Charter?
L uiz suggests the reader make a detour by scrutinizing the relationships between
the Sen’s or Nussbaum’s theories of capabilities and privacy. Under Sen, capabili-
ties encompass the conditions which enable the citizens to become ‘ fuller social
persons, exercising their own volitions and to interact with – and infl uence- the
world in which they live’. The interest of bringing closer together the concepts of
“capabilities” and “privacy” is twofold. Firstly, it underlines the fact that the indi-
vidual’s mastery of his or her environment is not obvious and does not depend on
his or her own volition but presupposes an active role of the state, which in a societal
and economic context will enable this possibility of mastery. Arendt, as noted in the
Foreword ix
thesis, would have spoken about the possibility of an individual realizing his or her
virtuality, in other words to make valuable choices within an uncertain environment.
It emphasizes the fact that privacy is not a liberty among others but does constitute
the conditions of these autonomic capabilities and is thus an instrument for the
fl ourishing of our human fundamental rights and freedoms.
To support his thesis, Luiz attentively analyses the case law generated by the
application of Article 8 ECHR. Particularly in his reading of cases like Botta vs
Italy, he demonstrates the prominent place afforded to the means to freedom rather
than to freedoms themselves. As asserted by the German constitutional Court since
1983 in the famous census case, the right to self-development within a given soci-
etal context is an adequate criterion to defi ne the outlines of privacy requirements,
considered as a tool for ‘ sustaining the uniquely human capacity for individual
refl exive self-determination and for collective deliberative decision making regard-
ing the rules of social cooperation ’. The author insists on the fact that the concept
of privacy is evolutive in its concrete meaning since it will refer to different means
according to the evolution of the socio-economic, technological and cultural context
wherein that human capacity will have to develop itself. If privacy could be limited
to the protection of home, correspondence and sensitive data in 1950, the new tech-
nologies, the globalization of our economy, the profi ling activities,… oblige us to
give to privacy another dimension and to recognize new subjective rights in order to
achieve our capacity for self-determination.
D ata protection legislation appears in that perspective as an historical answer to
the risks created for our self-development by an information society and thus is
directly derived from the privacy concept. As asserted by the author, legislation cre-
ates procedural guarantees (duty to inform, obligation to register and so on) and
subjective rights (right to object, right to access,…) in order to leave ‘s pace for
individuals to choose the lives they have reason to value ’. Ambient intelligence and
the profi ling activities authorized by modern technologies oblige us to renew our
legislation in different directions. The fi rst one, defi nitively, is to draw our attention
to the technology itself. Traditionally data protection legislations consider only the
relationship between data controllers and data subjects considered as a liberal sub-
ject, the relationship submitted to the DPA control. From now, we have to consider
the technology itself insofar as the danger resides in the software algorithms, the
infrastructure and the functioning of terminals. We have to take care of the potenti-
alities of the technology, the design of the ICT systems, and the logic behind the
algorithms. Moreover, with the author we plead for a risk assessment of ICTs and
for public debates about new applications and their societal impacts. The second
point will be to underline the crucial role of the state which has to create this space
for democratic discussion and to preserve the conditions of a public sphere where
every citizen might, with confi dence, express him or herself and develop his or her
own personality.
So, using different theoretical approaches and concepts (virtuality, capability,
agency, due process, governmentality) and authors (Foucault, Sen, Rouvroy,
Deleuze, Hildebrant) and combining these different sources in an original and fruit-
ful reasoning at the service of the defense of human values, Luiz Costa offers the