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A Framework for Analysing
Technology's Negative and Positive Impacts
on Freedom and Privacy

Appendices

This page contains the Appendices to a paper submission to Datenschutz und Datensicherheit (DuD) at http://www.rogerclarke.com/DV/Biel15-DuD.html

Draft of 16 August 2015

Roger Clarke **

© Xamax Consultancy Pty Ltd, 2015

This document is at http://www.rogerclarke.com/DV/Biel15-DuDA.html

Contents

• Appendix 1: Enumeration of Civil and Political Rights
• Appendix 2: Motivations for Privacy
• Appendix 3: Dimensions of Privacy
• Appendix 4: The Privacy Dimensions and the ICCPR
• Appendix 5: Technologies Negatively Impacting on Freedom and Privacy
• Appendix 6: Targets for Obfuscation and Falsification
• Appendix 7: Consumer-Oriented Social Media (COSM)

Appendix 1: Enumeration of Civil and Political Rights

Extract from AHRC (2015), emphases added

• Right to self-determination of peoples (ICCPR 1966 Art. 1) 
• Rights to equality and non-discrimination (ICCPR Art. 2.1, [14], 26) 
• Human rights and non-citizens  (ICCPR Articles 2.1, 13) 
• Legislative and other measures for implementation (ICCPR Art. 2.2) 
• Right to an effective remedy (ICCPR Art. 2.3) 
• Permissible limitations on rights
• Equal rights of men and women (ICCPR Art. 3) 
• Derogation from rights in emergencies (ICCPR Art. 4) 
• Non-diminution of rights (ICCPR Art. 5) 
• Right to life (ICCPR Art. 6)
• Freedom from torture or cruel, degrading or inhuman treatment or punishment (ICCPR Art. 7)
• Freedom from slavery and forced labour (ICCPR Art. 8)
• Security of the person and freedom from arbitrary detention (ICCPR Art. 9)
• Right to humane treatment in detention (ICCPR Art. 10)
• Prohibition on imprisonment for inability to fulfil a contract (ICCPR Art. 11)
• Right to freedom of movement (ICCPR Art. 12) 
• Fair trial and fair hearing rights (ICCPR Art. 14.1) 
• Minimum guarantees in criminal proceedings (ICCPR Articles 14.2 - 14.7) 
• Prohibition on retrospective criminal laws (ICCPR Art. 15) 
• Right to recognition as a person (ICCPR Art. 16) 
• Freedom from interference with privacy, family, home or reputation (ICCPR Art. 17) 
• Freedom of thought, conscience and religion or belief (ICCPR Art. 18) 
• Freedom of information, opinion and expression (ICCPR Art. 19) 
• Prohibition of advocacy of national, racial or religious hatred (ICCPR Art. 20) 
• Freedom of assembly (ICCPR Art. 21) 
• Freedom of association (ICCPR Art. 22) 
• Right to respect for the family (ICCPR Art. 23.1) 
• Right to marry and found a family (ICCPR Art. 23.2) 
• Rights of parents and children (ICCPR Art. 24) 
• Right to name and nationality (ICCPR Art. 24)
• Right to participation in public affairs, voting rights and access to public service (ICCPR Art. 25) 
• Rights of members of ethnic, linguistic and religious minorities (ICCPR Art. 27)

Appendix 2: Motivations for Privacy

Summary of Clarke (1997, 2006)

• Physiological Motivations
  People have deep-seated needs for personal safety and physical integrity
• Psychological Motivations
  People feel a need for intellectual integrity, which is associated with the need for 'private space', in both the physical and metaphorical senses, and for a sense of self-determination and what Maslow referred to as 'self-actualisation'
• Social Motivations
  People need to be free to behave, and to associate with others, subject to broad social mores, but without unjustified limitatoins on their behaviour, and without the threat of being under continual observation
• Economic Motivations
  The innovation on which production and consumption depend can only arise within contexts in which 'different-thinking' is at least tolerated, and even encouraged, rather than chilled
• Political Motivations
  Authoritarianism can only be avoided through ongoing flow of information and hence through views contrary to the current conventions being at least tolerated

Appendix 3: Dimensions of Privacy

Privacy is not a simple concept, but rather a construct of considerable complexity. The variety can be usefully explained by means of what I refer to as 'dimensions' and which some other authors prefer to call 'aspects' or 'types' (Finn et al. 2013). For discussions of these dimensions, see Clarke (1997-, 2006, 2014b).

(1) Privacy of the Physical Person

The deepest-seated need is for privacy of the physical person. A person who is in danger, wet and cold, or seriously hungry, does not have the luxury of worrying about needs higher up the Maslowian hierarchy. On the other hand, people in many societies enjoy pleasant living conditions, and place considerable value on four further dimensions of their privacy, for psychological, social, economic and political reasons.

(2) Privacy of Personal Communications

Individuals have an interest in being able to communicate with people who they choose to interact with, without others being privy to the conversation. Speech has always been at risk of being overheard, and since at least the early days of the telegraph in the 1840s, messages have been subjected to electronic interception. Moreover, unlike earlier forms of surveillance, electronic interception is usually conducted covertly. The Snowden revelations have caused far more people to appreciate that invasions of the privacy of human communications have reached epidemic proportions and that law enforcement agencies see interception capacity as an entitlement.

(3) Privacy of Personal Data

There was limited need to assert rights to data privacy while personal data was scattered across discrete physical records and read only by the few people who could gain access to each of them. Since the application of computing technologies to administrative data commencing about 1955, however, the privacy of personal data has also been subject to a rapidly-rising crescendo of intrusive behaviours and applications of technologies (Clarke 1988).

During the 1970s, business and government moved to defuse public concerns by creating a chimera rather than a shield. The express purpose of the OECD Guidelines was "to advance the free flow of information between Member countries and to avoid the creation of unjustified obstacles to the development of economic and social relations among Member countries" (OECD 1980). As a result, the real function of 'data protection' laws is not to protect personal data, let alone the person, but to authorise privacy-invasive behaviours by organisations subject to a limited regulatory framework.

(4) Privacy of Personal Behaviour

People have an interest in having considerable freedom to behave as they wish, subject only to the constraints of avoiding harm to the interests of others, of communities and societies. An individual's behaviour may be constrained by means of acts directly against their person, or by indirect influences, in particular through surveillance.

Surveillance constrains how people act, whether it is conducted in a physical manner (using the eyes and ears of humans), aided by technologies (such as directional microphones and recording apparatus), or entirely automatically. For discussions, see Clarke (2000, 2001a, 2007, 2009b, 2010). Covert surveillance causes many people to have a generalised fear of the 'pan-optic', and this can have an even more substantial impact on their freedom of behaviour. The pan-optic 'chilling effect' ranges from being highly desirable (where it creates a disincentive for criminal, sociopathic or psychopathic behaviour) to highly undesirable (where it reduces artistic creativity, scientific and engineering inventiveness, economic innovation or political speech).

(5) Privacy of Personal Experience

A further dimension of human concerns has been threatened by technological changes of the first two decades of the new century. What an individual reads and views, and the ideas that they gain access to through meetings and other events, have been converted from unrecorded ephemera to stored data. This is achieved through the logging of content sought (search-terms), text read (e-books and web-pages), audio listened to, and image and video viewed. That data is under the control of, and exploitable by, for-profit corporations, and is available to government agencies. The privacy of personal thought may not yet be directly under assault, but the privacy of personal experience is a dangerously close proxy for it.

Appendix 4: The Privacy Dimensions and the ICCPR

All of the dimensions of privacy outlined in Appendix 3 are readily recognisable in the UDHR (1948) and ICCPR (1966).

(1) Privacy of the Physical Person

This dimension of privacy is subject to formally-recognised freedoms including the right to life (ICCPR Article 6), right to freedom from torture and non-consensual experimentation (7), freedom from slavery (8), liberty and security and freedom from arbitrary arrest and detention (9), the right to humane treatment (10), and equality before the law (14).

(2) Privacy of Personal Communications

Formally-recognised freedoms relevant to this dimension of privacy include freedom from arbitrary or unlawful interference with correspondence (ICCPR 17), freedom of conscience and religion (18), freedom of expression and the right to seek, receive and impart information and ideas (19), and the rights to peaceful assembly (21) and freedom of association (22).

(3) Privacy of Personal Data

The ICCPR, although not AGREED until 1966, was based on the 1948 UDHR document. UDHR predates administrative applications of computing, and as a result the concept of personal data does not appear in either document. The primary civil right that supports data privacy is generally regarded as being freedom from arbitrary or unlawful interference with privacy (Article 17).

(4) Privacy of Personal Behaviour

Formally-recognised freedoms relevant to this dimension of privacy include the rights to liberty and security of person and against arbitrary arrest or detention (ICCPR 9), freedom of movement (12), freedom from arbitrary or unlawful interference with privacy, family and home (17), freedom of conscience and religion (18), the right to hold opinions, freedom of expression, and freedom to seek, receive and impart information and ideas (19), the rights to peaceful assembly (21) and freedom of association (22), and the right to participation in public affairs, to vote and to be elected (25).

(5) Privacy of Personal Experience

Formally-recognised freedoms relevant to this dimension of privacy include freedom of movement (12), freedom from arbitrary or unlawful interference with privacy and correspondence (17), freedom of thought, conscience and religion (18), the freedom to seek and receive information and ideas (19), the right to peaceful assembly (21), freedom of association (22), and the right to participation in public affairs (25).

Appendix 5: Technologies Negatively Impacting on Freedom and Privacy
Surveillance Technologies

• Data Surveillance
  • Data Collection
  • Data Matching
  • Agency Consolidation
  • Profile-Building
• Communications Surveillance
  • Metadata Retention and Access, for; and
  • Content Interception and Message-Storage Access, for
    • Fixed-Line Telephony
    • Mobile Telephony
    • Fixed-Line Internet Access
    • Mobile Internet Access
  • Access may be:
  • Real-Time, and/or
  • Retrospective, through analysis of retained messages
• Behaviour Surveillance
  • Visual surveillance of spaces, through CCTV, point-of-view cameras, drones, etc.
  • Visual surveillance of traffic corridors, e.g. through Automated Number-Plate Recognition (ANPR) (Clarke 2009a)
  • Identification, Location and Tracking technologies
  • Physical Social Network Mapping, through analysis of the intersections among individuals' tracks and inferencing about encounters
  • Electronic Social Network Mapping, through analysis of message metadata and/or content
• Experience Surveillance
  • Recording of content sought, through Web-searches, etc.
  • Recording of metadata of content accessed, through Web-logs, etc.
  • Recording of content read and viewed, through the Web, e-books, etc.
  • Intellectual Network Mapping, through analysis of search-terms, metadata and content accessed, read and viewed
  • Inferences from data, communications and behaviour surveillance

Enabling Technologies

• Identification (Clarke 1994)
  • Identity Requirements (pre-registration, production of identity authenticators) for the acquisition of:
    • Telephony connections
    • Internet connections
    • Mobile Handsets
    • Internet Services, incl. 'real name' policies
  • Electronic Identification, e.g. through cookies, web-bugs, transport tickets, toll-road tags, microchips in vehicles, microchips associated with, attached to and gradually embedded in human beings, and possibly through emergent ubiquitous / pervasive / ambient / Internet of Things capabilities
  • Imposition of Unique Device-Identification ('Big Brother Inside' Intel devices, IMEI and similar for mobile handsets, and IMSI and similar for SIM cards)
  • Incorporation of device-identifiers within IPv6 addresses
  • Embedment of the device-identifiers in message-headers
  • Imposition, Collection and Retention of Individuals' Biometric Entifiers
• Location and Tracking (Clarke 2001b)
  • Modes:
    • Capture of Current Location
    • Real-Time Tracking of Locations
    • Retrospective Tracking of Locations
  • By means of:
    • Physical Tracking through visual techniques, e.g. ANPR, possibly 'facial recognition'-capable CCTV
    • Electronic Tracking, e.g. through cookies, web-bugs, transport tickets, toll-road tags, microchips in vehicles, microchips associated with, attached to and gradually embedded in human beings, and possibly through emergent ubiquitous / pervasive / ambient / Internet of Things capabilities
• Interference with Behaviours
  • The Chilling Effect of ubiquitous surveillance / 'self-discipline'
  • Reminders of the existence of surveillance
  • Targeted messages, through direct communications and advertisements
  • Internet Access Restrictions
  • Meetings and Interviews with agents of authoritarian institutions
  • Travel restrictions, e.g. no-fly lists
  • Real-Time Interdiction on the move, e.g. en route to a relevant event
  • Denial of liberty, through arrest, detention, charge, remand in custody, and prosecution incl. with crimes that are incapable of being defended against

Appendix 6: Targets for Obfuscation and Falsification

• Data
  If a person's stored data could result in some organisation constraining their or any other person's freedom or privacy, the content of the stored data may need to be hidden
• Messages
  If a person's communications could result in some organisation constraining their or any other person's freedom or privacy, the content of the messages may need to be hidden
• Identities
  If visibility of the identity under which a person performs acts could result in some organisation constraining their or any other person's freedom or privacy, contrivances may be needed in order to make it difficult to associate the relevant people with those acts
• Locations
  If visibility of the location in physical or electronic space at which a person performs acts could result in some organisation constraining their or any other person's freedom or privacy, contrivances may be needed in order to make it difficult to establish the location in which those acts were performed
• Social Networks
  If the associations that a person has with others could result in some organisation constraining their or any other person's freedom or privacy, contrivances may be needed in order to make it difficult to construct those social networks

Appendix 7: Consumer-Oriented Social Media (COSM)

Means are needed for people to interact with other individuals, broadcast messages, and collaborate with others, without being subject to the highly exploitative business model of contemporary social networking services, and without exposing their profiles, identities and locations. Categories of 'persons-at-risk' who have particular need for such a service include victims of domestic violence, protected witnesses and undercover operatives (Clarke 2001c, GFW 2011). Table 5 identifies key features of COSM.

Table 7: Key Features of Consumer-Oriented Social Media

Extract from Clarke (2014a)

• Distributed Architecture (mostly likely applying peer-to-peer - P2P concepts)
• Interoperability (such that content and messages are not limited to that service, but can be exchanged with other services)
• Portability (such that content and messages can be extracted from one service and loaded into another)
• Consumer-Friendly Features and Terms of Service
• Privacy-Protective Features and Terms of Service (Clarke 2013)

References :

AHRC (2015) 'Rights and freedoms: right by right' Australian Human Rights Commission, Aprtil 2015, at http://www.humanrights.gov.au/rights-and-freedoms-right-right-0

Clarke R. (1988) 'Information Technology and Dataveillance' Commun. ACM 31,5 (May 1988) Re-published in C. Dunlop and R. Kling (Eds.), 'Controversies in Computing', Academic Press, 1991, PrePrint at http://www.rogerclarke.com/DV/CACM88.html

Clarke R. (1994) 'Human Identification in Information Systems: Management Challenges and Public Policy Issues' Information Technology & People 7,4 (December 1994) 6-37, PrePrint at http://www.rogerclarke.com/DV/HumanID.html

Clarke R. (1997) 'Introduction to Dataveillance and Information Privacy, and Definitions of Terms' Xamax Consultancy Pty Ltd, August 1997, revisions to March 2015, at http://www.rogerclarke.com/DV/Intro.html

Clarke R. (2000) 'Technologies of Mass Observation' Notes for the 'Mass Observation Movement' Forum, Melbourne, 26 October 2000, at http://www.anu.edu.au/people/Roger.Clarke/DV/MassObsT.html

Clarke R. (2001a) 'While You Were Sleeping ... Surveillance Technologies Arrived' Australian Quarterly 73, 1 (January-February 2001), PrePrint at http://www.rogerclarke.com/DV/AQ2001.html

Clarke R. (2001b) 'Person-Location and Person-Tracking: Technologies, Risks and Policy Implications' Information Technology & People 14, 2 (Summer 2001) 206-231, PrePrint at http://www.rogerclarke.com/DV/PLT.html

Clarke R. (2001c) 'Research Challenges in Emergent e-Health Technologies' Xamax Consultancy Pty Ltd, July 2001, at http://www.rogerclarke.com/EC/eHlthRes.html#PAR

Clarke R. (2006) 'What's 'Privacy'?' Xamax Consultancy Pty Ltd, August 2006, at http://www.rogerclarke.com/DV/Privacy.html

Clarke R. (2007) 'The Regulation of Surveillance' Xamax Consultancy Pty Ltd, August 2007, at http://www.rogerclarke.com/DV/SReg.html

Clarke R. (2009a) The Covert Implementation of Mass Vehicle Surveillance in Australia' Proc. 4th Workshop on the Social Implications of National Security: Covert Policing, April 2009, ANU, Canberra, at http://www.rogerclarke.com/DV/ANPR-Surv.html

Clarke R. (2009b) 'A Framework for Surveillance Analysis' Xamax Consultancy Pty Ltd, August 2009, at http://www.rogerclarke.com/DV/FSA.html

Clarke R. (2010) 'What is Überveillance? (And What Should Be Done About It?)' IEEE Technology and Society 29, 2 (Summer 2010) 17-25, at http://www.rogerclarke.com/DV/RNSA07.html

Clarke R. (2013) 'Consumer-Oriented Social Media: The Identification of Key Characteristics' Xamax Consultancy Pty Ltd, February 2013, at http://www.rogerclarke.com/II/COSM-1301.html

Clarke R. (2014a) 'The Prospects for Consumer-Oriented Social Media' Proc. Bled eConference, June 2014, PrePrint at http://www.rogerclarke.com/II/COSM-1402.html

Clarke R. (2014b) 'Privacy and Free Speech' Invited Presentation at the Australian Human Rights Commission Symposium on Free Speech, Sydney, 7 August 2014, Xamax Consultancy Pty Ltd, August 2014, at http://www.rogerclarke.com/DV/PFS-1408.html

Finn R.L., Wright D. & Friedewald M. (2013) 'Seven Types of Privacy' pp. 3032 of Gutwirth S., Leenes R., de Hert P. & Poullet Y. (eds.) 'European Data Protection: Coming of Age' Springer, 2013

GFW (2011) 'Who is harmed by a "Real Names" policy?' Geek Feminism Wiki, undated, apparently of 2011, at http://geekfeminism.wikia.com/wiki/Who_is_harmed_by_a_%22Real_Names%22_policy%3F

ICCPR (1996) 'International Covenant on Civil and Political Rights' United Nations, 1966, at http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

OECD (1980) 'OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data' OECD, 1980, at http://www.oecd.org/internet/ieconomy/oecdguidelinesontheprotectionofprivacyandtransborderflowsofpersonaldata.htm

UDHR (1948) 'Universal Declaration of Human Rights' United Nations, 10 December 1948, at http://www.un.org/en/documents/udhr/index.shtml

Author Affiliations

Roger Clarke is Principal of Xamax Consultancy Pty Ltd, Canberra. He is also a Visiting Professor in Cyberspace Law & Policy at the University of N.S.W., and a Visiting Professor in the Computer Science at the Australian National University.

The content and infrastructure for these community service pages are provided by Roger Clarke through his consultancy company, Xamax. From the site's beginnings in August 1994 until February 2009, the infrastructure was provided by the Australian National University. During that time, the site accumulated close to 30 million hits. It passed 65 million in early 2021. Sponsored by the Gallery, Bunhybee Grasslands, the extended Clarke Family, Knights of the Spatchcock and their drummer

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