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Democratic Societies in the Digital Age: what role for data protection?

Wojciech Wiewiórowski

 

With their creativity, sense of innovation, teamwork and drive, the EDPS and EDPB trainees produced a podcast entitled “Democratic Societies in the Digital Age”, a three-part series in which they invited experts from wide-ranging professional backgrounds to cover a number of pertinent subjects related to data protection.  

This blogpost, written by EDPS and EDPB trainees, summarises what they have learned from these insightful discussions. 
 

 


 

It is a tradition for the trainees of the EDPS and the EDPB to organise an event shedding light on why data protection and privacy are important for our lives. We wanted to honour this tradition in a different way by producing a podcast series instead of a conference, giving a societal perspective instead of only focusing on individuals.  

It is inevitable that society affects our lives as individuals. Being part of a society allows us to have specific rights and interests and influences our expectations or the way we behave. Our generation sees the exponential development and deployment of disruptive technologies affecting the dynamics of individuals’ lives and society. We see trends in new systems of governance, mostly based on extensive and intensive tracking, where data is an asset, an attractive source of power based on the false assumption that if you have enough data, any issue can be solved—be it terrorism, migration, climate change or the COVID-19 crisis. We see the challenges that this shift to ‘datocracy’ brings to democratic societies. We also see how individuals are often manipulated into providing – in a caricature of consent – permissions to process their personal data. This consent might be, in itself, manipulated or exploited and used to target the individual with very specific politically-charged messages. In response to these challenges, we gathered experts from diverse backgrounds and asked them the following question:

How can data protection contribute to individual empowerment, liberating individuals from abuse and unjustifiable surveillance and protecting democratic societies?

We approached all this under the umbrella of three different topics in our podcast series.

Mass Surveillance and Facial Recognition 

In the first episode, we asked Ella Jakubowska which data protection safeguards are available for society as a whole and for individuals to be adequately protected. In particular, we asked her about the requirements of necessity and proportionality in data protection. We discussed what individuals can do to protect themselves, such as taking part in initiatives organised by citizens like the Reclaim Your Face campaign, or sending freedom of information requests and data access requests. We discussed the increased surveillance during the COVID-19 crisis and the risk of mission or function creep with contact tracing apps (i.e. how one measure introduced for a specific goal is gradually repurposed for different objectives). The differences between surveillance by the government and surveillance by private companies were also addressed and the power that the latter has over individuals and societies because they control vital infrastructures.

Dark Patterns and Online Manipulation 

For the second episode, Harry Brignull and Finn Lutzöw-Holm Myrstad led an insightful discussion on the issue of dark patterns and how this phenomenon may exploit human psychology. The kind of manipulation orchestrated via dark patterns is harmful and widespread. It is a sign that those behind dark patterns do not care about the right to data protection and the privacy of individuals, rather they see individuals as a source of data that can be used as leverage and exploited. While dark patterns are relevant in many other fields - particularly in the field of consumer protection - they have indeed become relevant to data protection as they relate to personal data, especially when consent from individuals is required as they frustrate the requirement of free consent under the General Data Protection Regulation (GDPR). In many instances, dark patterns are illegal under the GDPR; Harry and Finn discussed specific cases, and provided advice on how to spot these and how to resist them collectively. They advised to take a screenshot when you spot the dark pattern and to spread the word within your circles so that more users become aware of this manipulation. In other words, “Complain loudly and complain publicly!”

The main takeaways from this fruitful discussion were: one should not be cornered into consenting to unnecessary data processing; boxes listing categories of cookies should not be pre-ticked; individuals should not be herded into unfair agreements like cattle from which data can be harvested; data protection rules give us rights and we should be vigilant and stand ready to uphold them.

Emerging Technologies and Future Challenges 

In the third episode, we asked Dr. Gabriela Zanfir-Fortuna and Jared Brown to discuss the most forthcoming and pressing data protection and privacy issues they expect in light of the rapid technological developments experienced across the globe. While foretelling exact changes and effects of current technological trends is extremely difficult, our guests agreed that society will both shape and evolve in view of the rapid evolution of technology. Therefore, they highlighted that adaptability and a sense of humbleness are key aspects for forward-looking policy-making and data protection. The discussion concluded with an overall optimistic message: we should embrace what is ahead and we should work on developing a legal framework that provides appropriate rules in which any technological development will fit. Going forward, evaluating what we, as a society, are willing to trade for (sometimes alleged) technological benefits is an essential part of this process.

In conclusion, ubiquitous technologies shape the expectations that we, young Europeans, have and the actions that are available to us which enhance but also influence our online and offline experience. The use of these technologies therefore requires binding norms and transparency, to avoid a possibly disastrous impact on people, democratic processes and society at large. Data protection provides reliable safeguards for both individuals and society. While society itself is transformed by technological innovation, it is pivotal for the future of Europe that we do not forget that this digital transformation needs to be rooted in European values and fundamental rights, not vice-versa. We believe data protection can play a crucial role to ensure that this is the case, it is up to us to make this role a reality.

The EDPS and EDPB trainees of October 2020 
Margarit I Contel Guifré, de Brouwer Siméon, Germanou Michaela, Güzel Irem, Horváth Anna Zsófia, Jużak Joanna, László Ádám, Pavlou Anastasia.