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[Entry text] Katharina Kalchner (20/5/2018, within the context of the course "The Odysee of Philosophy and Information", facilitated by J.M.Díaz in HM) [You have an introduction, which is good, but also an abstract where you summarise the contents of your entry will be necessary] Contents
1. IntroductionThis article describes several terms and issues that are substantial to the concept of privacy. As privacy is understood very differently in various parts of the world [I would rather state it as "cultures". By that means you are more clearly linking it to "inter-cultural" ethics. On the other hand the important thing is not where this happen but from what cultural perspective it is considered. People in Munich see it very differently according to the culture they belong to. By the way, in this situations the conflict is particularly relevant because the same people need to understand both viewpoints since they are alternatively immersed in more than one cultural world], it contains and is connected to a number of other topics such as subjectivity or autonomy. What all of these factors of privacy have in common is the fact that one has to or is able to differentiate between the individual and the world outside one's control or one's mind. Regarding subjectivity, it is all about what defines the subject itself but it is also important to know that the subject can put itself in relation with the world. Various philosophers have defined the term autonomy differently, but they all have - at least in Western societies - included the idea of self-government or the ability to make decisions, independently from others (the state, other subjects etc.). It is important to keep in mind that the idea in Western society of an individual as an autonomous being having dignity only exists since the Enlightenment ]. Before that, the thought of individuals was hardly associated with the one of freedom. [I would say this has an earlier starting point in the humanist tradition in the Renaissance. Indeed Pico della Mirandola wrote a book on 'dignity'. In the middle age scholastic, thus even earlier, the term started to be used. Nevertheless, it is particularly with Kant that the concept is fully developed] 2. Privacy in the context of information ethics and intercultural information ethicsThe leading question here is, as in almost all articles of this encyclopedia: What is the concrete connection to information? Whether we talk about subjectivity, autonomy or privacy itself: We always look at how data about ourselves is treated. Regarding individual's data, I would define it as information in the form of facts such as credit or financial records etc., that can be read and understood by others independently from the persons character. This is especially important when it comes to cloud computing or, in general, privacy in digital age when data or information about persons are often made public by themselves with the constant possibility of that data being abused. Another challenge is, of course, to keep all information private. But do we want this? Is this still realistic? Privacy in this sense means to me the protection of data that I do not want to see in the hands of third parties. The problematic issues here are for example keeping to data safe in a time of social media, cloud computing and a networked world. Furthermore, in a context of intercultural information ethics, what can we do to keep our culture what it is while cultures get mixed and people are connected to many different ones. "Think global, act local" or maybe the other way round? 3. SubjectivitySubjectivity in general is what defines a subject, i.e. its desires, experiences and its ability to taste, to feel, to think and to put oneself into relation with oneself and with the world. As Gail Fine describes it: "According to [John] McDowell, two features that are
essential to subjectivity are “representational bearing on the world and ability
to introspection”" (Fine 2003: p.193). In the modern Western world, subjectivity is something permanent and substantial. It does not depend on a situation or the surrounding of the subject but stays firm and has to be protected as what it is (Capurro 2005). Michael A. Peters enunciates that subjectivity has been in an influential position since the Enlightenment regarding most parts of our life today: "The philosophy of subjectivity has been one of the crowning achievements of
Western philosophy that has helped to shape and define modern philosophy, the
foundations of science, liberal political and educational thought, and the culture of
modernity" (Peters 2017). However, this modern way of thinking about subjects and subjectivity has only started with Descartes who initiated it, although he did not use the term subjectivity but mostly spoke of it as the cogito. The main development then took place during and after the Enlightenment when subjectivity started to be associated with the freedom of individuals. It was challenged again in the second half of the twentieth century when opinions split up into two groups: one group tried to "define the nature or structure of the subject" and the other group that saw any definition of subjectivity as "the product of culture and power" (Mansfield 2000: p.51). Both of these groups had important and great thinkers behind them: Freud for instance represented the first one while the latter is associated with works and theories of Friedrich Nietzsche (1844 - 1900) and Richard Foucault (1926 - 1984). Coming back to an intercultural point of view, the following paragraph will point out differences in the understanding of subjectivity in Japan and the Western society. According to Weinmayr and Kimura Bin, an influential contemporary psychiatrist who has already worked both in Japan and in Germany and is thus well able to compare the two of them, Japanese subjectivity is the very contrary to the Western understanding of it. Not only is it discontinuous, but it heavily depends on situations and results from a network of relations and situations (ibid). Bin Kimura published a book in 1974, available in Germany since 1995 ("Zwischen Mensch und Mensch: Strukturen japanischer Subjektivität") in which he claims that the probably most important problem within this definition of subjectivity is the understanding of an individual. This again varies greatly depending on cultures, religions and the level of development of the country regarding liberal thinking etc. In order to understand the Japanese meaning of the word subjectivity, some terms have to be defined as they do not exist in Western society as such. Seken represents a world with clear rules, that are not based on the respect for permanent identities but on the respect for the space(s) and situations between individuals. This space between individuals is called Aida, which has many other meanings including "interval", "gap", "between", "among". This space for situations in contrast to the firm beliefs of a subject in the Western world is vital for Japanese people and will also change the view of privacy later. Shakai are the Western privacy rules without any connection to the Japanese subjectivity. The negotiation of Seken is Ikai, comparable to the Christian imagination of the hell, with the big difference that Ikai is not only a dangerous place, but also very attractive (Capurro 2005). Subjectivity is only a word but it has a great influence on our whole thinking and our attitude towards everyday life (or the other way round: our thinking gives the word another definition than it does in other parts of the world). In the literature, one can see how this way of thinking is established in every part of our lives, as for example: "An objective
sentence presents some factual information about the world, while a subjective
sentence expresses some personal feelings or beliefs" (Indurkhya & Damerau 2010). 4. (Informational) AutonomyThe information scientist Rainer Kuhlen understands information autonomy as the capacity to choose and use information and knowledge in an electronic environment (Capurro, 2005). Independent from modern communication technologies would be the "capacity for self-government" as a general and very unspecified definition. In the Oxford Dictionary of Philosophy it says that agents are only autonomous if their actions are truly their own. This is rather difficult as every wish, desire or action is originally caused by factors outside our control, including those factors that shaped our characters. In the Oxford Advanced Learner's Dictionary autonomy is defined by "the ability to act and make decisions without being controlled by anyone else". The part of not being controlled is a substantial point and especially relevant in today's politics. Kant had a rather specific imagination on what autonomy is. He described it as "the ability to know what morality requires of us, and functions not as freedom to pursue our ends, but as the power of an agent to act on objective and universally valid rules of conduct, certified by reason alone." (Blackburn, 1996). He presents autonomy as the basis of morality and moral laws as self-legislated (Kant, 2017: p.xxiii). This emphasises the independence from everything outside our own mind. As well as subjectivity, the western view of individual autonomy as a basic moral and political value is a very modern development and has only come up as such since the Enlightenment. 4. Privacy in different cultural contextsa) Informational Privacy in the USA "The most important office, and the one which all of us can and should fill, is that of private citizen" (Mason, A.T.; 1946). It is frequently read and heard that written discussions on privacy started with the famous essay by Samuel D. Warren (1852 - 1910) and Louis Brandeis (1856 - 1941) called "The right to privacy" (Warren and Brandeis, 1890) although of course Aristotle had also made up his mind about it long before that. He had differentiated between the public sphere of politics and political activity (polis) and on the other side the private or domestic sphere or family (oikos). Samuel D. Warren, a Boston attorney and Louis Brandeis, an American lawyer and associate justice on the Supreme Court of the United States, argued that existing law in the USA could be interpreted so that it provided the protection of an individual's privacy already. What they then sought to find out was the nature and the extent of that protection. They put a focus on the at that time upcoming media newspaper and photography and could already see how this medium of information had an impact on a person's privacy. They pointed out that the focus of their work was not to protect the items produced or intellectual property but rather the peace of mind attained to such protection. According to them, the right to privacy was based on a principle of "inviolate personality" which was part of a general right of immunity to a person, "the right to one's personality". They laid the foundation "for a concept of privacy that has come to be known as control over information about oneself" (DeCew, 2006). Soon after the publication of their theory the movement of privacy in the USA regarding state and federal courts developed. William Prosser attempted to specify this development in tort court and divided the right to privacy into four different categories:
The descriptions of Prosser and Warren and Brandeis differ, however, as Warren and Brandeis had written about their normative views regarding their understanding of what should be protected concerning privacy while Prosser only declared what the Supreme Court had protected in the 70 years following the work of Warren and Brandeis. The Supreme Court declared that privacy is a central reason for Fourth Amendment protection. Consequently, many see privacy include protection against unwarranted searches, eavesdropping, surveillance and appropriation and misuses for one's communications. This comes very close to the modern definition of privacy and how digitalization has an impact on it. In 1965, the constitutional right to privacy was first introduced in the USA. It was first mentioned in the Griswold v. Connecticut (381 U.S. 479) case and defined as "protecting a zone of privacy covering the social institution of marriage and the sexual relations of married persons" (DeCew, 2006) by Justice William O. Douglas. With this right it was soon after possible to rescind the ban on interracial marriage, "to allow individuals to possess obscene matter in their own homes, and to allow distribution of contraceptive devices to individuals, both married and single" (DeCew, 2006). b) Privacy in Germany The first paragraph of the German Federal Data Protection Act says: "(1) The purpose of this Act is to protect the individual against his/her right to privacy being impaired through the handling of his/her personal data." (§1 Federal Data Protection Act - Bundesdatenschutzgesetz, abbreviated as BDSG).The first Federal Data Protection Act in Germany was published in 1977. However, seven years before that, the federal state Hessen had already published the first formal Data Protection Act of the world. Comparing with other countries and institutions: The Privacy Act in the US dates from 1974, the Electronic Communications Privacy Act from 1986 and in the EU the first right in this rubric was made in 1995 with the Directive on Data protection. The information scientist Rainer Kuhlen described privacy as information autonomy (s.a.) rather than "the right to be let alone" or than data protection. He differentiates between privacy as related to data protection and privacy as the right to informational autonomy. He named several fundamental principles that have derived from the principle of privacy in Germany:
However, people may be willing to give up parts of their information privacy in return for a greater ability to pursue their economic interests. Such stakeholders do not consider information privacy, understood as data protection in an electronic environment, as presuppositions for an autonomous life. This is only possible because it has not yet been passed a law such as the Freedom of Information Act in the US (Capurro, 2005). c) Privacy in Japan: criticism and the denial of self In Japanese culture, the self has a negative value (Capurro 2005). Therefore, they claim that the self has to be denied in order to provide a basis for criticism. This denial of self is called musi. On the contrary, in Germany a protected self is subject to reasonable criticism. In Japan there is a focus on protecting the Seken, so their main intention does not lie at protecting the individual's self, which in Western society is beliefs, ideals etc., but to protect the world of clear Japanese rules as we had defined above (Capurro 2005). The strongest legal factor in Japan is of course the constitution. In Chapter III (Rights and Duties of the People) Article 13 it says: "All of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs." The right to privacy derives from a general right to the pursuit of happiness. 6. Privacy in the age of digitalization a) Changes and dangers The first discussions about privacy in law by Warren and Brandeis were to a high extent motivated by the development of information exchange via newspaper and photography. In the twentieth century, again, the Fourth Amendment was extended to cover telephone wiretaps and electronic surveillance. We always try to have control over information exchange. Now, in times of internet accessible for almost everybody (in industrialised countries) with huge databases containing information about individuals such as financial and credit history, medical records or private conversations as well as constant information exchange by means of smartphones, watches etc., many see that privacy is still of essential value in all of ours personal interests but it is more threatened by technological advances than ever (DeCew 2006). The fast development of technology offers new opportunities to cyber criminals. It can start with the simple example of the status on a social medium saying that a person is on holiday. This is an invitation for thieves. A little more complex danger is cloud computing. Its use increases drastically but people do not worry enough about their data. Not only could hackers find access to these clouds, the lack of encryption makes the data even more vulnerable as it is unprotected on those huge electronic databases. Furthermore, the data is constantly transported forth and back between servers due to remote control (Ephrati 2015). b) GDPR [Cryptic texts are not desirable in interdisciplinary contexts. If I say "CE" it can mean many different things depending on the context and disciplines involved. Thus when we do it, we are blocking the understanding of others. This concerns in particular the first appearance of Acronyms. The title should then reflect the full designation, to which I would add EU, for instance "EU's General Data Protection Regulation (GDPR)"] GDPR stands for General Data Protection Regulation, an act that has been planned by the European Union since 2012 and will enter into force in May 2018. In Germany, it will replace the Federal Data Protection Act and will be directly applied by all authorities and courts. It aims at standardizing all different levels of data protection in the EU. In Germany, for example, the current Federal Data Protection Act is based on the EU Data Protection Directive which dates back to 1995 when a smartphone has not even been invented yet, the cell phone was a novelty and by far not all households had a computer or even internet. However, some areas will be left for countries to enhance their own laws (Culik 2018: pp.38) The GDPR is mainly criticised for two points. Firstly, the General Regulation is "said to come closer to a directive in its effects". This argument mainly concerns the opening clauses in which only broad provisions are given so member states still have a lot of scope for their own laws. For example, article 88 states that "Member
States may, by law or by collective agreements, provide for more specific rules to
ensure the protection of the rights and freedoms in respect of the processing of
employees’ personal data in the employment context". A closer definition of "more specific rules" is not given and therefore many different interpretations and realisations of this article are expected although the main purpose of the GDPR was to prevent such differences. Secondly, people fear that citizens might have less legal protection. EU law always takes precedence over national law, so especially when fundamental rights are concerned (e.g. the right to informational self-determination) and citizens feel they have been hurt in their rights, the ECJ in Luxembourg instead of the national curt has jurisdiction. In Germany this would be the Federal Constitutional Court (Bundesgerichtshof) in Karlsruhe. Consequently, it has to be examined how member states will handle the opening clauses. We do know for sure that privacy in the sense of data protection cannot stay on a national level. For Germany, the GDPR does not mean a significant change, although some things will change of course, but in other states such as Roumania or Ireland, data protection standards will rise and bring changes for companies with them. (Culic 2018: pp.29) c) Current example in Germany In Bavaria (Germany) a new law, the so-called "Polizeiaufgabengesetz" (Police Task Act) has now passed. It says that the the police is now allowed to access data such as telephone calls, messages etc. when there is only an imminent danger. More than 30,000 people demonstrated against this amendment. There are plenty examples for why people are scared of others looking into their personal information: several phone hacking scandals on state level (USA and Germany, Russia) as well as smaller scandals that can be seen in the news regularly. From a philosophical point of view we could start a discussion on whether we are still autonomous citizens. But from a public or security point of view in a time when terrorist attacks are not so seldom it might be more important to ask whether we can put our safety before privacy or autonomy. Since 9/11, the right to privacy has increasingly been colliding with the right to security. References
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