22nd march 2006swami conference swami- presentation on legal aspects serge gutwirth paul de hert wim...

22nd MARCH 2006 SWAMI CONFERENCE

SWAMI- presentation on legal aspects

Serge GutwirthPaul De Hert

Wim SchreursAnna Moscibroda

SWAMI Safeguards in a World of Ambient Intelligence


Work package 1: A state-of-the-art

Deliverable D1: The brave new world of ambient intelligence:

A state-of-the-art review (July 2005)

Existing legal framework for AmI described

Subject matters:

• Privacy and Data Protection

• Intellectual Property Rights

• E-commerce and Consumer Protection

• Torts and Liability• I.C.T. Law • Criminal Law• Antidiscrimination law• Jurisdiction and Applicable

Law



Work package 2: developing “dark” scenarios

- Aim: Creating and analysing more realistic scenarios that highlight the

key socio-economic, legal, technological and ethical risks of AmI

- Scenarios on:- A typical family in different environments - Senior on journey - Corporate boardroom and court case- Risk Society



Legal analysis of scenarios

Approach:– Highlighting situations in the scenario that raise legal questions– Indication and assessment of the existing legal rules on EU level– Results: identification of existing lacunae



Work package 3 (ongoing): Developing safeguards

• Aim: to identify the research and policy options built into the Information Society Services, the safeguards addressing key risks and vulnerabilities.



Particularities of regulating the AmI (cyberspace)

CONTEXT 1[The Law of the Horse: What Cyberlaw might teach” L. Lessig,

Harvard Law Review, Vol. 133:501 ]

Law as one of the set of tools regulating behaviour- also prise, social norms and ‘code’

– certain legal norm might be difficult to enforce because of the architecture of the new environment (data protection obligation, protection of copyrights)

– new problems may arise form the way the new environment is designed (dataveillance, spam)

– should than law change, should the architecture change?



• Law regulates via the sanction• Code regulates by enabling or disabling certain behaviour. • Law can regulate via influencing architecture

Effective tackling the identified problems often needs both approaches in the same time

=RECOMMENDATION 1



Examples of the law rules regulating itself:

– liability rules– data laundering– private international law– antidiscrimination

Examples of law regulating via architecture:

– PETs– Making passports machine-readable– Data retention and wiretapping– Restricted interoperability




CONTEXT 2

Precautionary principle is a legal principle for ecological problems (irreversible)

– But is it a principle to be applied to ICT problems and AmI in particular?

– NO (or not always)



Solution for European Information Society

OPACITY (Saying under no circumstances)

TRANSPARENCY (saying yes but)

- Europe uses both tools. We can understand the difference between the right to privacy (opacity tool) and the right to have data protected (transparency tool) along these lines



Some challenges to the privacy due to the features of the new environment- dataveillance could be addressed by

opacity tools:

• Use of anonymous, pseudonymous, credentials and trusted third parties

• legal framework for the digital territories

• Spaces not monitored-

Regulating by influencing architecture

• Restrictions on the unjustified and disproportional usage of implants

• Restriction of usage of evidence obtained in the privacy violation

Regulating by law itself



Most challenges due to the features of the new environment- dataveillance should be addressed by transparency tools such as data protection and security measures

=RECOMMENDATION 2




CONTEXT 3

A central law maker does not exist

– European federalism (EU cannot regulate every aspect of AmI;

– f.e. national id cards)

– Executive powers in Member States are omni powerful but have delegated part of the decision making power to independent advisory organs (f.e. children rights commissioners & data protection authorities)

– Producers are also lawmakers (f.e. acrobat reader)



Keep eye on this legal pluralism Keep eye on how courts work (see later) let all actors play their respective roles

e.g. labour law in workplace surveillance e.g. consumer law organisationse.g. children rights authorities e.g. participatory technology assessment (patients in

Warwick’s example)

=RECOMMENDATION 3




CONTEXT 4

Legal profession avoids high level (of abstraction) arguments but prefers to stick to medium level or if possible low level arguments

– A holistic legal initiative is not to be expected

=RECOMMENDATION 4:

focus on concrete technologies (RFID, biometrics and relevant concepts such as interoperability), apply opacity and transparency accordingly



Example of a legal recommendation: Liability

• What we see: little legal attention for software error or deficient software quality

• What we propose: to consider stricter liability for software or reversing the burden of proof

• How? Extending reach of Directive 85/374 concerning liability for defective products



Example of a legal recommendation:

Data protection

• What we see: problems with consent, with purpose specification principle, etc.

• What we also see: legal framework is questioned by introducing novel concepts such as principle of availability and interoperability

• We propose not to come up with something new but give legal machine time to work (consider the work of data protection watchdogs and wait for court decisions)

• First results: Goggle handling over only 50.000 items; European consensus about higher degree of suspicion when accessing non-police databases; introduction of privacy impact studies at EU level



Example of a legal recommendation:

social responsibility

• What we see: our society is equality driven• What we propose: certain services should provided for

all at affordable price or for free (emergency services, basic software), after consultation of stakeholders (aging people, etc.)

• How: new Directive on Universal Services



Future ?

• Understanding role of law next to other instruments• Understanding role of soft law • Exploring potential of participatory technology

assessment• Identifying who is responsible for what when (Ch. Raab)



Thank You


22nd march 2006swami conference swami- presentation on legal aspects serge gutwirth paul de hert wim...

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