Fifteen years ago, the legal scholar Michael Froomkin wrote:
“There is no magic bullet, no panacea. If the privacy pessimists are to be proved wrong, the great diversity of new privacy-destroying technologies will have to be met with a legal and social response that is at least as subtle and multifaceted as the technological challenge.”
His words are as true today as they were then. We now know from Edward Snowden about routine mass surveillance by security services and the misuse of data cavalierly swept up by commercial corporations. Take recent revelations that Facebook, for example, has been tracking the web browsing of everyone who visited a page on its site, even if they’d expressly opted out of tracking in the EU. That’s not what passers-by imagine will happen when they casually look at a news feed.
But the tide may at last be turning, at least in Europe. A number of significant events at the close of March in Geneva, Luxembourg and London raise the prospect that our battered and eroded rights to privacy and data protection are being defended against the relentless onslaught by the security state and data-hungry corporate interests.
Austrian law student Max Schrems’ lawsuit against Facebook over the security, storage and treatment of EU users’ data (particularly its sharing of that data with Prism and other clandestine surveillance programmes) was heard in the Court of Justice of the European Union on 24th March, and it showed the court in full flight, confidently challenging legislative and executive authority and doggedly defending basic rights to data protection and privacy.
In London, the Court of Appeal found in the case of Vidal-Hall that browser-generated information is frequently extremely private and that secret, blanket tracking was intrusive and distressing. The case, as lawyer Julia Powles notes this week in the Guardian, creates new pressure for business models to provide users with real control over their private data.
Meanwhile, in Luxembourg, the UN Human Rights Council took a bold step toward establishing a special rapporteur on privacy in response to a Brazil and Germany-led coalition demanding new protections and actions after Snowden’s revelations.
These may not amount to Froomkin’s magic bullet, but they’re significant moves toward re-defending the individual’s right to privacy at a time when that right has been badly trampled on.