Scott, Online English teacher and researcher at Acadsoc.
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In the past 24 hours, Mark Zuckerberg appeared in almost every news feed in my Facebook account. Everyone is questioning about Facebook’s policy and data security because one ex-partner of Facebook, named Aleksandr Kogan shared massive data from Facebook to Cambridge Analytica without the authorisation of Facebook and users themselves. Zuckerberg and his team made a big mistake in trusting someone untrustworthy, which also indicates vulnerabilities in Facebook’s data security.
Big data, as mentioned previously in Jakob’s blog, is a new technology which can create a model and algorithm to predict anyone’s behaviour based on collected data from the individual. When applying in education, schools and companies can better estimate students’ preference in teachers, teaching materials, time of class, classroom background and teaching methods, which allows educators to customise curriculums for every single student.The preconditions of achieving the target is collecting a huge amount of data from every student, age, gender, nationality, first language, parents’ education background, family education, characteristics, interests, hobbies, previous performance at school, diets, favourite colours, etc. Big data is trying to understand every person as a collection of data flows or in the way of Model Analysis. The more information you feed the system, the more accurate model you can expect for.
Charged by the ‘instinct’ of big data, business and public organisations have an impulsion to collect more personal information by all means. After collecting data from their clients, the largest problem will be where to reserve the data. In most cases, private companies cannot afford a 24-7 maintenance DC (Data Center), which urges them to find an easier solution-outsourcing. Cloud storage services provided by Google, Amazon, Alibaba and other internet giants perfectly seize the market demand by creating a cheap and large-capacity storage solution. However, can we fully trust their business morality and self-discipline? Even governmental contractors may disclose information to unauthorized parties (Japanese pension data entry outsourced to Chinese firm), the government will collect information from citizens without authorization (Project ‘Prism’ revealed by Edward Joseph Snowden) or companies collect information without clients’ awareness (Google faces UK suit over alleged snooping on iPhone users).
How to lower the price and risks?
For the government, legislation and law seem to be the only solution for data scandal. However, to rule companies from collecting information merely under users’ awareness and authorisation cannot solve the problem anymore. In my opinion, counting on profit makers to take care of our own benefit is never an option. Europen countries and the USA are heading towards different directions in introducing governmental power and law when coming closer to a universal acknowledgement: Strict and Just law system can help prevent many risks and damage carried by data explosion and better protect your privacy.
In 1981, members of the Council of Europe, the precursor of Europe Union, signed Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data in Strasburg. The convention regulated that all automatic processing of data (electronic/computer-based storage, data mining, alteration, delete, retrieval and dissemination of personal data) shall be fairly and lawfully, according to local acts of member countries. Private data undergoing such processing should be up to date, accurate and under certain safeguards. Most importantly, ruled in additional safeguards, any individual reserves the right to know where his/her personal data, for what purpose and in which form is stored and used. Any citizen can apply for rectification or removal of their data if they believe any automatic processing is against the domestic law where they reside.
To code with multi-nation, multi-culture and multi-religious environment of Europe, the convention also restricted that sensitive and controversial personal information such as skin colour, race, belief, sexual life is not allowed to go under automatic processing unless there is an appropriate safeguard provided by domestic law.
Though EU is no doubt a pioneer in data security and correctly foresee the risks along with era of information, it still highly relies on the law and legislation in member countries.
Great Britain, for instance, has a different law tradition (common law) from most of her neighbours (civil law). In the judgment of Kaye v Robertson  FSR 62 in the UK, two journalists breached into a celebrity, Kaye’s room in the hospital without authorization after Kaye was injured. Judge Glidewell concluded, “It is well known that in English law there is no right to privacy, and accordingly there is no right of action for breach of a person’s privacy. The facts of the present case are a graphic illustration of the desirability of Parliament considering whether and in what circumstances statutory provision can be made to protect the privacy of individuals.“It indicates the restriction of common law tradition in the UK when there is no previous case with a similar occasion to refer to or there is no actual harm caused by violation of privacy. Hence, Libel, Malicious falsehood, Trespass to the person and Nuisance are frequently used claims of plaintiffs. There is no accusation particularly for privacy breach now in the UK.
In Germany, Right of Privacy was initially included in their constitution after WWII. German Criminal Code last amended in 2009 explicitly stated in section 202 and 203 for regulation of privacy protection, covering Violation of the privacy of the written word (202), Data espionage (202a), Phishing (202b), Acts preparatory to data espionage and phishing (202c) and Violation of private secrets (203).
Facebook lost the lawsuit back in 2012 in German when The Central Consumer Association, Verbraucherzentrale Bundesverband brought the case to regional court proclaiming that Facebook’s Friend Finder function had violated the right of privacy. Even after the judgment, VZBZ chased after Facebook as a nemesis, insisting that Facebook keeps collecting German users’ information without informing them the usage and giving them a choice to let Facebook grab their information or not. Again in 2018, Berlin regional court judged that Facebook violates data protection code of Germany. There is even a voice on the internet at the moment, ‘Will Germany fix Facebook?’ For Zuckerberg and his social media empire, German law serves as a Normandy when US force is coming to this country again.
Though the word ‘privacy’ never appears in American constitution, the Fourth Amendment to the Constitution of the United States added: ‘the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’To make it simpler for comprehension, we can interpret it as it offers US citizens the right to stay in peace, isolation and not be disturbed if they are willing to do so.
In 1890, “The Right To Privacy” by Warren and Brandeis as a law review article brought a huge wave to American law system. For the first time, US citizens realised that the right to privacy should be included in the natural birthrights (in the constitution) of every individual. After reviewing traditional English laws on Libel and Slander, these two young lawyers, respectively aged 34 and 38 loudly yelled their voice in Harvard Law Review to advocate the human right of privacy and challenge the existed common law tradition. With the rapid urbanization, prosperity in industry after the second industrial revolution, expansion of middle class and flourish in the media industry, American law academia would sooner or later turn their attention into privacy protection. Their viewpoints were widely discussed and developed particularly in the early 20th century, considered as the ‘Golden Age of America’ before the Depression.
Another milestone in privacy laws in the US was Cason v. Baskin, 20 So. 2d 243 (Fla. 1944), Cason suing author Baskin for using her as the prototype of a character in the book Cross Creek. The Florida Supreme Court judged that a breach of privacy was supported by the facts, even in a later proceeding, the court found that no actual damage was caused to the plaintiff. Written in the dissent, ‘As I construe the allegations of the declaration they show that the writing and publication complained of did not invade the privacy of the plaintiff or refer to her private life but attempted to portray her actions and conduct while performing the functions of a public servant in the office of census enumerator.Therefore (absent malice, which is not shown here) the writing and publication was not actionable and judgment on demurrer sustained should be affirmed.‘ The adjudicate supported Warren and Brandeis’s point of view that violation of privacy is not necessarily related to actual harm. Any attempts to arise actual or may cause potential harm (no matter intentionally or not) to others by violating privacy should be prohibited and put out of action.
When it comes to the 21st century, to code with new opportunities and risks brought by big data and new technology, white house released a report BIG DATA: SEIZING OPPORTUNITIES, PRESERVING VALUES in 2014. President Obama proposed to grab the new chance in the 4th industrial revolution and called for such a review from his consultants. As for privacy protection, US government held a pretty open and optimistic attitude against the challenges. Not to blame or accuse any party of data scandal. Instead, Obama’s team brought up many constructive suggestions to get rid of side-effects of big data. For instance, tighten the cooperation between Federal Trade Commission and data brokers to direct them into a right way, urge to pass national data breach legislation and expand the coverage of privacy protection to non-us citizens.
There is no doubt that the US is a leading country in big data and automatic data processing with many powerful IT companies in Silicon Valley. However, like Achilles’ Heel, their privacy protection is far from satisfying the taxpayers. It makes politician’s promises unreliable and futile when the US government itself is invading millions of files every day, grabbing data from residents without any awareness or authorisation. Zuckerberg once claimed ‘social norms’ of privacy evolved in 2010 when responding to a question regarding more openness of information on Facebook. Unfortunately, responses from his user and the stock market in the past 24 hours proved the new ‘social norms’ of privacy is not getting loosen, but more and more tighten. Even the Z generation cannot tolerate their privacy being invaded and abused. Also, like her sister country, UK, federal laws in the US mainly restrict the power of government to invade any civilian’s property, safety and privacy. Private lawsuits between parties are primarily based on the judgement of previous cases.
It is inevitable that invasion of privacy and personal data will keep happening in the coming decade when more and more information is collected from everybody. As Karl Marx has said in his masterpiece Capital, ‘With adequate profit, capital is very bold. A certain 10 percent. Will ensure its employment anywhere; 20 percent. Certain will produce eagerness; 50 percent., positive audacity; 100 percent. will make it ready to trample on all human laws; 300 percent., and there is not a crime at which it will scruple, nor a risk it will not run, even to the chance of its owner being hanged.’ And I believe the capability of big data is far beyond generating 300% profit for a business because it brings the sellers closer to their Pareto Optimality-when every customer is getting the exact good at the exact price they prefer the most.
Breach of privacy is not surmountable, as Zuckerberg said. Even it is true, any technology cannot stop human from protecting their own benefit, including privacy. We are willing to pay tuition fees and fall on the ground in this school of information, and every explosive news in violation of privacy is a lesson for our lawmakers to learn from.