[governance] A positive right to privacy in the most current version of Brazilian Internet Bill of Rights
Riaz K Tayob
riaz.tayob at gmail.com
Fri Jun 14 03:39:00 EDT 2013
When the context changes so must the law. But there are dimensions that
are not fully captured... and it is perhaps relevant about thinking
about these rights in an exploratory way, even though law requires
precision:
Positive and Negative rights
Socio-economic rights tend to be negative defensive... that is the state
cannot take certain actions, like evicting people from land if there is
no alternative to them, rather than a positive duty to provide shelter.
This is a cold war relic in the formative years of the Universal
Declaration of Human Rights and other treaties, positive rights being a
victim of McCarthyism, imho.
What is missing in the HR discussions is the issue commodification of
individual information as aggregated (kinda like database protection in
the EU). You/we are now the product for abuse by both companies and the
USG and other governments. LIbertarians hold that free contracting
individuals can enter agreements based on consent and that is the best
form of liberty, freedom to contract without government interference.
But when there is a unilateral change to the service companies terms of
service, or a change in its business model, this is a unilateral act,
may be made consensual, but creates negative externalities and creates
social costs that are dispersed affecting third parties - another
collective action trap, aggregated benefits for small numbers of BigData
providers and diffuse costs for many many other people. If privacy were
a right, this could be seen as a small expropriation... which is why I
reject the libertarian view of voluntrism.
Just recently the US court said that human genes cannot be patented.
Knowing how useless and permissive the US patent office has been in
granting low quality patents (spurring a real problem for US
communications and information systems businesses) this is a major
shift. So why can certain forms of data and information simply not be
"property" or commodified? And if it is property, why is taking/usurping
not viewed as a small expropriation or regulatory taking?
This implies of course that the shape/design of the technology and the
institutions (in broad sense) around it be geared toward this capability
of taking... should there be a social audit of what can be done to
improve the privacy and dignity respecting capabilities of the
technology? A social audit is essential since all indications are that
the USG is going to deliver a whitewash in oversight...
Have technical experts been rather lax at getting public interest issues
like this through governance arrrangemetns? And if they face impediments
in getting DNSec etc off the ground, should they nor reach out more and
build a constituency around it if their actions have not worked? Or
should we leave them in the technical realm...
Just because the USG spits on its own constitution and on the rights of
others does not mean that we have to acquiesce to the Guantanamofication
of the Internet. We should decolonise the imagination... technology can
be shaped by social consensus...
Great stuff Brazilians... years of US sponsored/supported dictatorships
seems to have bred a revived ethic... fabulous stuff!
On 2013/06/13 08:05 PM, Carolina Rossini wrote:
> I understand your point and that is why language and grammar actually
> matters in bill drafting (every verb and comma matters!). I will look
> carefully at the Portuguse version and talk to Molon and other folks
> about it. But I do think we have a good opportunity to ensure that the
> positive side is also established. A question to pose would also be if
> the Marco Civil has space to set norms to "protect" Brazilian citizens
> from overreaching acts of foreign agencies.
>
> On Thu, Jun 13, 2013 at 12:57 PM, Ivar A. M. Hartmann
> <ivarhartmann at gmail.com <mailto:ivarhartmann at gmail.com>> wrote:
>
> Oh, I see. I didn't know of this this concept for the term
> 'positive right', especially if its opposite is 'negative right',
> as you mentioned.
> Positive right in this sense is very commonly understood as an
> entitlement that the state positively do something - a provision
> or service of some kind. It follows that social rights are thus
> positive rights.
> Again, I believe all rights have both dimensions (negative and
> positive) and fully support the view that there are positive
> actions the state must take to protect privacy, instead of merely
> foregoing to violate it.
> My only point is that the articles in the Marco Civil that you
> mentioned do not convey that idea. They /can/ be read as
> dispositions that protect only a negative right to privacy.
>
> Best,
> Ivar
>
>
> On Thu, Jun 13, 2013 at 1:24 PM, Carolina Rossini
> <carolina.rossini at gmail.com <mailto:carolina.rossini at gmail.com>>
> wrote:
>
> Dear Ivar,
>
> I understand privacy has been traditionally considered a
> negative right, but Marco Civil is trying to change that. A
> positive right is a right that has been affirmed by statute,
> so in law or in a constitution of some kind, and opens the
> door for claims. I also see it as a positive right, since it
> gives us more control over our data.
>
> However, if you have a better language, you and any other
> person, should feel free to suggest. We still have time to
> improve.
>
> I will be with Molon next week, so I would be happy to
> consolidate suggestions and deliver to him.
>
> C
>
>
> On Thu, Jun 13, 2013 at 12:06 PM, Ivar A. M. Hartmann
> <ivarhartmann at gmail.com <mailto:ivarhartmann at gmail.com>> wrote:
>
> Carolina,
>
> Maybe you feel other articles in the current draft of
> Marco Civil are better evidence of a positive dimension of
> the right to privacy. But I don't see how articles 3, 8
> and 10 are an evidence of that.
> /These dispositions are all compatible with the
> understanding of privacy as a negative right alone/.
> That is not to say privacy doesn't have a positive
> dimension - I believe all rights have, including free
> speech. Such isn't the prevalent view in the US, however.
> A more clear adoption of the positive dimension by the
> Brazilian legislator is therefore in order.
> Best regards,
> Ivar
>
>
> On Thu, Jun 13, 2013 at 12:06 PM, Carolina Rossini
> <carolina.rossini at gmail.com
> <mailto:carolina.rossini at gmail.com>> wrote:
>
> Hi all,
>
> Taking in consideration all the recent news, I would
> like to share with you the current version of the
> Brazilian Internet Bill of Rights (Marco Civil) in
> english. This is not the same version available in the
> Brazilian Congress website, it is the final version
> put out by House Representative Molon (thus, newer).
> There is a positive right to privacy in our bill, so
> it would be interesting to think if this is the time
> to ask the same in other countries. Below, articles 3,
> 8 and 10 that deal with the issue. Article 10 has been
> criticized by privacy advocates from other countries
> due to log retention, but I do feel it is something
> that has been incorporated in our culture, since been
> debated since 2000 in Brazil and the bill also
> requeres court order (even before we started the Marco
> Civil debate). (Joana, in the list, can provide her
> views on this)
>
> /*Article 3* The regulation of Internet use in Brazil
> underlies the following principles:/
>
> /II – protecting privacy;/
>
> /*Article 8 *Protection of the right to privacy and
> freedom of expression in communications is a
> prerequisite for the full enforcement of the right of
> access to the Internet./
>
> /*Article 10.*Record retention of Internet connection
> and access to application logs, for the purposes of
> this Act, must protect the privacy, private life,
> honor and image of the parties directly or indirectly
> involved./
>
> /§ 1 The provider responsible for record retention
> will only be required to provide the aforementioned
> logs, alone or combined with other information that
> may help identifying a user or terminal, upon court
> order, as set forth in Section IV of this Chapter./
>
> //
>
> /§ 2 Security and confidentiality measures and
> procedures must be communicated by the connectivity
> services provider and clearly meet the standards set
> forth by regulation./
>
> /§ 3 Breach of the aforementioned confidentiality
> right is subject to criminal, civil or administrative
> sanctions./
>
> I will host Mr. Molon next week in meetings at Harvard
> (including at Berkman). So, if you have any thoughts
> or questions you want to ask him or contributions,
> please let me know. Talking to his assessors, we
> concluded that a letter of support, or words of
> support focused on how Marco Civil creates a positive
> right to privacy are also timely adequate and welcomed.
>
> Thank you,
>
> Carol
>
> --
>
> *Carolina Rossini*
> http://carolinarossini.net/
> + 1 6176979389 <tel:%2B%201%206176979389>
> *carolina.rossini at gmail.com
> <mailto:carolina.rossini at gmail.com>*
> skype: carolrossini
> @carolinarossini
>
>
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>
> --
> *Carolina Rossini*
> http://carolinarossini.net/
> + 1 6176979389 <tel:%2B%201%206176979389>
> *carolina.rossini at gmail.com <mailto:carolina.rossini at gmail.com>*
> skype: carolrossini
> @carolinarossini
>
>
>
>
>
> --
> *Carolina Rossini*
> http://carolinarossini.net/
> + 1 6176979389
> *carolina.rossini at gmail.com <mailto:carolina.rossini at gmail.com>*
> skype: carolrossini
> @carolinarossini
>
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