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Chapter 2 Foundational Concepts and Frameworks

From within the secret court of men's hearts, Tom was a dead man the minute Mayella Ewell opened her mouth and screamed.

—Harper Lee, To Kill a Mockingbird, 1960

We cannot escape the secret courts within the hearts of men. Opinions, impressions, judgments and prejudices are formed, often instantly and subconsciously, based upon available data, context, and experience. The availability of greater and greater quantities of multimedia-enriched data makes more acute the imperative to manage and respect the power of information to impact individual lives as well as those of entire races and nation-states.

There's a terror in knowing what the world is about.

David Bowie

This chapter addresses key definitions and concepts of privacy that anyone involved in engineering writ large (i.e., architecting, designing, developing, managing, and implementing components, products, services, processes, systems, or applications that process personal information) must understand to be successful as we enter a new stage in the Information Age—that of intelligence and data science. We also will define what privacy engineering is, what a privacy engineer does, and the goals of privacy engineering. In subsequent chapters, we will discuss how to apply these definitions and concepts to a privacy engineer's work, broadly defined as designing, creating, inventing, imagining, and building things that process personal information.

What Is Privacy?

A great majority of the complexity this book addresses arises, in fact, from the imperfections and difficulty of defining this multifaceted thing called privacy. There are different forms

of privacy. Data privacy (also known as data protection in Europe), which is the kind of privacy this book addresses, can be discussed at great length, but finding one, global, consistent definition can be elusive. This chapter will propose an operational definition of data privacy as it is most often conceived by organizations that consume and process data about people and the governments and institutions who wish to regulate its many aspects and uses. This is not a book about public policy, philosophy, religion, or advocacy other than for privacy engineering.

Data privacy is one form of privacy that is derived from substantive privacy.

Substantive privacy describes the right and ability of an individual to define and live his or her life in a self-determined fashion. Other forms of privacy attempt to describe and define this basic human fact. Data privacy is a derivative of the substantive right to privacy in that it is about data that has been created about an individual (1) by himor herself, (2) by others through observations and analysis, or (3) by the consumption or processing (i.e., use) of that data about an individual by others.

Some of the other forms of privacy, or ways in which substantive privacy may be broken down, are behavioral privacy, decisional privacy, and physical privacy. They all interrelate and overlap in various ways. For simplicity sake, throughout this book, whenever we refer to privacy or data privacy we intend them as one and the same (i.e., data privacy) and if another form of privacy is intended, it will be identified.

There are different forms of privacy such as behavioral privacy, decisional privacy, and physical privacy.

Decisional privacy is really about being able to make decisions and choices without third-party inspection or intrusion. This may be thought of as self-determination within one's own private life. not having to explain or justify one's behavior or share personal opinions or thoughts is an example of decisional privacy.

Behavioral privacy is about being able to act as one wants, free from unwanted third-party intrusion or observation (assuming no harm to others is incurred or laws broken). in this realm, people may dance in their living rooms or whistle in their cars or don various forms of dress or undress upon their own discretion.

Physical privacy is privacy about one's body or person. modesty is another word for it. some people are more sensitive to physical privacy than others.

Two things about the different forms of privacy should be noted. First, in many instances the examples overlap. Rarely is an example of one kind of privacy exclusive of another. second, data privacy runs through all types of privacy because as soon as something about you or someone is observed or articulated (even just by you), you cantilever into the data privacy space. data privacy is literally the language of substantive privacy forms whenever an action or behavior or even a stillness occurs. As such, as soon as any third party becomes involved in data that describe another person, data privacy becomes a fiduciary activity where access, sharing, or exchange of personal information is the corpus of the fiduciary trust.

By stewart Room, Partner, Field Fisher waterhouse llP

The right to privacy has been described in many different ways. us lawyers often talk about the Fourth Amendment prohibition against unreasonable search and seizures as protecting private spaces. European Human Rights law says that

the right to privacy protects our home life, family life, and correspondence from unreasonable interference by the state. legislation that is commonly grouped together as privacy laws has focused on the topics of health, financial services, children, electronic communications, and data security breaches. Famous court cases have protected the image rights of celebrities, the chassis of cars,[1] and office computers[2] all in the name of privacy. statutory regulators use consumer laws to prevent the misselling of home closed-circuit television systems and smartphones as being privacy enhancing.[3]

Two golden threads run through this diverse list of interests, creating a common and uniting bond among them: the concepts of substantive and informational privacy. within a civilized society, it is the desire to protect substantive and informational privacy that unites the celebrity, the child, the consumer, the smartphone, the camera, the home, the workplace, and the car. All theories of privacy and all privacy laws will pay service to one or both of these concepts.

The idea at the heart of the concept of substantive privacy is that people should be free to make decisions about how they lead their lives, free from interference by others. The idea at the heart of the concept of informational privacy is that people should be able to control the use of information about themselves. within a state of privacy, these concepts reinforce and support each other; substantive privacy needs and relies upon informational privacy, and vice versa.

in this day and age it is readily appreciated that the threats to a person's privacy do not flow only from the state—the identity Theft bogeyman is as much an icon for privacy interference as Big Brother—yet the example of the malevolent state

provides the easiest way to demonstrate the relationship between and the concepts of substantive and informational privacy and their interdependencies. And among the many sickening examples of state-level evil that have plagued mankind and shamed our history, Hitler's nazi regime in Germany stands among the very worst.

The Jew in Hitler's Germany was required to wear a yellow star. This badge said publicly “i am a Jew.” The information it conveyed restricted the Jew to the ghetto and, later, it destined him to the gas chamber. The evil nazi state controlled the information, and the substantive effects will never be forgotten. shortly after the end of the war, Europe adopted the Convention on Human Rights, ensuring the right to privacy for all persons, so that these horrors could not be repeated. Yet even in the modern world, states still interfere with informational privacy to substantively maligning effects. The internet is intentionally tapped in north korea and China to gain information about dissidents, which creates a general appreciation of the presence of surveillance and creates fear, which causes modifications to substantive actions, decisions, and the way people live their lives.

But why is any of this important to the privacy engineer? simply put, remembering the very real connections between information and substantive actions and decisions creates a mental knot in the handkerchief of the mind (not to be glib about the use of information and the design of information processing systems). often the substantive effects of information mishandling are hard to see, fathom, or articulate.

The connection between a yellow star and a gas chamber is nonobvious. The harms or distress that may result from a security breach can also be nonobvious, likewise those resulting from data profiling, data aggregation, or data monetization. The privacy engineer will understand, however, that adherence to the principles and disciplines of engineering will provide the best prospects of understanding the substantive risks that can flow from the processing of personal information, and that engineering gives the best prospects for risk mitigation.

A captain of the industry has famously stated that the boundary between lawful data processing and unlawful interference with privacy is a “creepy line,” a statement that for good or bad will sustain along with “the right to be let alone” within the lexicon of privacy. if the boundary between lawfulness and illegality is to creep and shift, the risk of unwelcome substantive effects becomes embedded within the organization. A risky business may accept this, but the privacy engineer who understands the connections between information and substantive privacy will understand the truth of this fascinating area; the boundary cannot creep and change, but should be fixed. This can only be achieved by coding the boundary into the architecture of the processing system.

  • [1] US v. Jones, 565 US , 132 S. Ct. 945 (2012).
  • [2] See, for example, Copland v. United Kingdom, 62617/00 [2007] ECHR 253 (3 April 2007). See also the UK Information Commissioner's “Employment Statutory Code of Practice” (2008).
  • [3] See, for example, US Federal Trade Commission v. HTC, File No. 122 3049 (2013).
 
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