Let us politicize privacy!

An opinion editorial by Luca Bolognini, President of the Italian Institute for Privacy and Data Valorisation.

Let us politicize “privacy”! I said it recently, speaking at two open conferences in Rome. Data is not the new oil: it is the fifth element after air, earth, water and fire. Our economy, our culture, our society, our research and development, our coexistence are made of personal data. Our life. Privacy regulations (both legislative and administrative, binary codes and legal codes) are not politically neutral.

“Privacy” – intended as an umbrella-word that includes a group of “rights of human-self”, such as the protection of identity, of personal data, of confidentiality, of digital self-determination and much more – can affect individual and collective freedoms in a more or less restrictive sense, depending on how it is interpreted. An overly restrictive and twentieth-century “privacy” can turn into a road paved with good intentions, directed to hell.

Speaking at those recent conferences, I used the metaphorical example of the architectural orders (Doric, Ionic, Corinthian) to point out how the authorities (not only the Data Protection Authorities, also the courts and, above all in EU, the Court of Justice) sometimes tend to interpret the principles of necessity and minimization of personal data processing in a way that is dangerous for human freedom, which they themselves would aim to defend: to consider the contractual obligations between a company and the data subject/subscriber invalid, since they are objectively not strictly necessary to make the main service provided functional, it would be like admitting only the legitimacy of creating “minimal” capitals, at most of the Doric order, excluding the possibility of conceiving an Ionic or even Corinthian order with all those futile acanthus leaves and additional decorations, superfluous with respect to the main function of the capital. When purchasing a pair of Dolce and Gabbana shoes, if the decorations were made of personal data, should we always request them in a solid color and without graphics since a shoe must only be the shoe? I am aware of the metaphorical provocation, but, after all, isn’t this the phenomenon that arises when a social network like Facebook is challenged for the invalidity “regardless” of an explicit contractual provision, understood precisely as an obligation to responsibility of the provider, to profile the user/subscriber to recommend personalized contents and services?

Let us politicize “privacy”, I said. Let’s not leave it to the elite. Unfortunately, already the right to be let alone by the tabloid tabloids of the late 1800s was a need for VIPs (such as Warren and Brandeis were) and not for ordinary people. Then, the European legislation on the protection of personal data was the result of a noble but elitist regulatory exercise “in vitro” in the second half of the 1900s: the people still do not feel it is “their own”, they do not perceive its profound value (which does exist), sees it as a tiring bureaucracy or a technocratic tinsel. To become popular, it must become politicized. In order to become more politicized, it must begin to be the object of debate and confrontation, of a dialectic that contests regulation and even the decisions of the authorities in these matters. Through political controversy, the struggle of ideas and visions, disagreement or enthusiasm for rules that affect the skin of the data subjects  (“my data is mine and I manage it”) and other stakeholders for good or bad, on their wallets and their daily initiatives, privacy will find a democratic and truly felt dimension in people. A new era of discussions is beginning, on divergent interests and freedom expectations that will fascinate normal people: because the spaces, furniture and comforts of their homes, the goods of their shops, the performance of their cars, the classrooms, the lessons and the verifications of their schools, everything will have the data-element as a very relevant substance, to be defended and for which to fight. And so, the paternalistic regulations – those in which the legislators or the administrative and judicial authorities assume the power to decide before and in place of the individual – will gradually cease to be “gold standard”, they will challenge each other, they will allow themselves to evolve per aspera. And it will not be “lèse majesté”.

A decision that invalidates a free contractualisation between two subjects can give rise to even very harsh criticisms, in terms of legal policy. A sentence which – interpreting in a maximalist sense the principle of limitation of data retention enshrined in the GDPR – prevents the retention of data indefinitely to provide personalized advertising, even though the data subject has given his free and specific consent to do so, is questionable, both legally and politically. A ruling that prohibits a museum from using smart sensors – with personal data processing of a few fractions of a second – to statistically survey the types of visitors and process valuable information on the passage and observation of the exhibited works of art, can be disputed in the XXI century. A start-up that – due to an overly preclusive and biased regulation – has to close its doors or in any case give up flying (again, metaphorically) in the “European airspace”, only because it processes substantially anonymous data but, still, abstractly (through unreasonable and disproportionate means) reidentifiable information, can irritate innovators. The regulatory barrier to clinical research for the secondary use of health data – resulting from previous services, purposely “transformed” so as not to be reasonably traced back to the original patients – disconcerts if it ends up slowing down or stopping scientific progress in the medical, biomedical and epidemiological fields (and indeed that is a real fact, according to several national laws in the EU, despite the GDPR). An overly restrictive privacy regulation is unsustainable: the valorisation of personal data (which is 90% of the available data) – quite possible without overwhelming fundamental rights – is now a question of sustainability. Of world view. Of politics. We therefore need citizens, activists, politicians who are experts in data law: it will happen – it is already happening – naturally but, still, not obviously.