22nd MARCH 2006SWAMI CONFERENCE SWAMI- presentation on legal aspects Serge Gutwirth Paul De Hert Wim Schreurs Anna Moscibroda

22nd MARCH 2006SWAMI CONFERENCE Work package 1: A state-of-the-art Deliverable D1: The brave new world of ambient intelligence: A state-of-the-art review (July 2005) Existing legal framework for AmI described Subject matters: Privacy and Data Protection Intellectual Property Rights E-commerce and Consumer Protection Torts and Liability I.C.T. Law Criminal Law Antidiscrimination law Jurisdiction and Applicable Law

22nd MARCH 2006SWAMI CONFERENCE Work package 2: developing dark scenarios -Aim: Creating and analysing more realistic scenarios that highlight the key socio-economic, legal, technological and ethical risks of AmI -Scenarios on: -A typical family in different environments -Senior on journey -Corporate boardroom and court case -Risk Society

22nd MARCH 2006SWAMI CONFERENCE Legal analysis of scenarios Approach: –Highlighting situations in the scenario that raise legal questions –Indication and assessment of the existing legal rules on EU level –Results: identification of existing lacunae

22nd MARCH 2006SWAMI CONFERENCE Work package 3 (ongoing): Developing safeguards Aim: to identify the research and policy options built into the Information Society Services, the safeguards addressing key risks and vulnerabilities.

22nd MARCH 2006SWAMI CONFERENCE Particularities of regulating the AmI (cyberspace) CONTEXT 1 [The Law of the Horse: What Cyberlaw might teach L. Lessig, Harvard Law Review, Vol. 133:501 ] Law as one of the set of tools regulating behaviour- also prise, social norms and code –certain legal norm might be difficult to enforce because of the architecture of the new environment (data protection obligation, protection of copyrights) –new problems may arise form the way the new environment is designed (dataveillance, spam) –should than law change, should the architecture change?

22nd MARCH 2006SWAMI CONFERENCE Law regulates via the sanction Code regulates by enabling or disabling certain behaviour. Law can regulate via influencing architecture Effective tackling the identified problems often needs both approaches in the same time =RECOMMENDATION 1

22nd MARCH 2006SWAMI CONFERENCE Examples of the law rules regulating itself: –liability rules –data laundering –private international law –antidiscrimination Examples of law regulating via architecture: –PETs –Making passports machine-readable –Data retention and wiretapping –Restricted interoperability

22nd MARCH 2006SWAMI CONFERENCE Particularities of regulating the AmI (cyberspace) CONTEXT 2 Precautionary principle is a legal principle for ecological problems (irreversible) –But is it a principle to be applied to ICT problems and AmI in particular? –NO (or not always)

22nd MARCH 2006SWAMI CONFERENCE Solution for European Information Society OPACITY (Saying under no circumstances) TRANSPARENCY (saying yes but) -Europe uses both tools. We can understand the difference between the right to privacy (opacity tool) and the right to have data protected (transparency tool) along these lines

22nd MARCH 2006SWAMI CONFERENCE Some challenges to the privacy due to the features of the new environment- dataveillance could be addressed by opacity tools: Use of anonymous, pseudonymous, credentials and trusted third parties legal framework for the digital territories Spaces not monitored- Regulating by influencing architecture Restrictions on the unjustified and disproportional usage of implants Restriction of usage of evidence obtained in the privacy violation Regulating by law itself SWAMI Safeguards in a World of Ambient Intelligence

22nd MARCH 2006SWAMI CONFERENCE Most challenges due to the features of the new environment- dataveillance should be addressed by transparency tools such as data protection and security measures = RECOMMENDATION 2

22nd MARCH 2006SWAMI CONFERENCE Particularities of regulating the AmI (cyberspace) CONTEXT 3 A central law maker does not exist –European federalism (EU cannot regulate every aspect of AmI; – f.e. national id cards) –Executive powers in Member States are omni powerful but have delegated part of the decision making power to independent advisory organs (f.e. children rights commissioners & data protection authorities) –Producers are also lawmakers (f.e. acrobat reader)

22nd MARCH 2006SWAMI CONFERENCE Keep eye on this legal pluralism Keep eye on how courts work (see later) let all actors play their respective roles e.g. labour law in workplace surveillance e.g. consumer law organisations e.g. children rights authorities e.g. participatory technology assessment (patients in Warwicks example) = RECOMMENDATION 3

22nd MARCH 2006SWAMI CONFERENCE Particularities of regulating the AmI (cyberspace) CONTEXT 4 Legal profession avoids high level (of abstraction) arguments but prefers to stick to medium level or if possible low level arguments –A holistic legal initiative is not to be expected =RECOMMENDATION 4: focus on concrete technologies (RFID, biometrics and relevant concepts such as interoperability), apply opacity and transparency accordingly

22nd MARCH 2006SWAMI CONFERENCE Example of a legal recommendation: Liability What we see: little legal attention for software error or deficient software quality What we propose: to consider stricter liability for software or reversing the burden of proof How? Extending reach of Directive 85/374 concerning liability for defective products

22nd MARCH 2006SWAMI CONFERENCE Example of a legal recommendation: Data protection What we see: problems with consent, with purpose specification principle, etc. What we also see: legal framework is questioned by introducing novel concepts such as principle of availability and interoperability We propose not to come up with something new but give legal machine time to work (consider the work of data protection watchdogs and wait for court decisions) First results: Goggle handling over only items; European consensus about higher degree of suspicion when accessing non- police databases; introduction of privacy impact studies at EU level

22nd MARCH 2006SWAMI CONFERENCE Example of a legal recommendation: social responsibility What we see: our society is equality driven What we propose: certain services should provided for all at affordable price or for free (emergency services, basic software), after consultation of stakeholders (aging people, etc.) How: new Directive on Universal Services

22nd MARCH 2006SWAMI CONFERENCE Future ? Understanding role of law next to other instruments Understanding role of soft law Exploring potential of participatory technology assessment Identifying who is responsible for what when (Ch. Raab)

22nd MARCH 2006SWAMI CONFERENCE Thank You