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P Bernal Thesis Body Amended Version ! ! PhD!Thesis! ! Paul!Alexander!Bernal! ! ! ! ! ! ! ! ! London!School!of!Economics!and!Political!Science! ! Department!of!Law! ! ! ! ! ! ! ! ! ! ! “Do!deficiencies!in!data!privacy!threaten!our!autonomy!and!if!so,! can!informational!privacy!rights!meet!this!threat?”! ! Page!1! ! Declaration! ! ! I!certify!that!the!thesis!I!have!presented!for!examination!for!the!MPhil/PhD! degree!of!the!London!School!of!Economics!and!Political!Science!is!solely!my! own!work.! ! The!copyright!of!this!thesis!rests!with!the!author.!Quotation!from!it!is! permitted,!provided!that!full!acknowledgement!is!made.!!This!thesis!may!not! be!reproduced!without!the!prior!written!consent!of!the!author.! ! I!warrant!that!this!authorization!does!not,!to!the!best!of!my!belief,!infringe! the!rights!of!any!third!party.! ! ! ! ! ! ! ! ! ! ! ! Paul!Alexander!Bernal! ! ! ! ! ! ! Word!count!as!submitted!(including!footnotes,!excluding!preface,!table!of! contents!and!bibliography):!99,995 ! Page!2! ! Abstract! ! This!thesis!sets!out!a!model!to!examine!how!the!internet!functions.!‘The! symbiotic!web’!suggests!a!symbiotic!relationship!between!corporations!that! have!built!business!models!dependent!upon!the!gathering!of!personal!data! from!people,!and!the!individuals!themselves!who!have!begun!to!rely!on! apparently!‘free’!services!(from!search!to!email,!social!networking!to! YouTube).!Having!set!out!the!model,!the!thesis!looks!at!its!implications:!how! it!has!contributed!to!many,!both!the!positive!and!negative,!developments!on! the!internet!in!recent!years,!but!also!driven!the!mass!gathering,!use!and! holding!of!personal!data.!The!symbiotic!web!is!currently!essentially! beneficial!to!both!businesses!and!individuals,!but!there!are!significant!risks! attached!U!risks!associated!with!the!accumulation!of!data!and!risks!that!the! symbiotic!relationship!could!become!negative!and!parasitic,!putting! individuals’!privacy!and!autonomy!at!risk.! ! The!implications!of!this!model!are!examined!through!the!use!of!case!studies:! the!dispute!between!Google!and!the!Article!29!Working!Party!over!data! retention,!Phorm’s!‘Webwise’!behavioural!targeting!system,!and!a!number!of! smaller!case!studies!about!data!vulnerability!from!the!HMRC!data!disc!loss! to!the!ACS:Law!hack/leak.! ! The!thesis!suggests!the!development!and!use!of!specific!rights!designed!for! the!internet!to!address!the!associated!risks:!a!‘right!to!roam!the!internet! with!privacy’,!a!right!to!monitor!those!who!monitor!us,!and!a!‘right!to!delete! data’.!These!rights!would!be!set!out!as!principles!rather!than!enacted!and! enforced!as!laws,!and!brought!into!play!through!Murray’s!model!of! symbiotic!regulation.!These!rights!would!support!the!positive!development! of!the!web!symbiosis!and!encourage!and!shape!new!business!models!that! are!more!supportive!of!individual!autonomy!and!privacy.! ! !! ! Page!3! ! Preface!and!Acknowledgements! ! For!most!people!in!what!might!loosely!be!described!as!the!developed!world,! the!internet!can!no!longer!be!considered!an!optional!extra,!but!is!an!intrinsic! part!of!life.!Significant!aspects!of!life!take!place!on!the!internet!–!interactions! with!government,!access!to!news!and!information,!banking,!shopping,! communication!and!social!interaction!on!an!everUgrowing!scale.! Accompanying!this!growth!in!significance!of!the!internet!has!been!a!massive! growth!in!the!gathering,!using!and!holding!of!personal!data,!gathered!both! in!the!‘real’!world!and!through!the!internet!itself.!The!ways!that!this!data!is! gathered,!used!and!held,!and!the!intrusions!to!our!privacy!connected!to!that! gathering!and!use,!have!an!impact!that!needs!to!be!considered!very! carefully.!It!is!the!contention!of!this!thesis!that!both!the!data!and!the! processes!through!which!it!is!gathered,!used!and!held!represent!a!threat!to! our!autonomy.! ! Central!to!the!thesis!is!a!theoretical!model!of!how!the!internet!in!its!current,! substantially!commercial!form!functions:!‘the!Symbiotic!Web’.!This!model! suggests!a!symbiotic!relationship!between!corporations!that!have!built! business!models!dependent!upon!the!gathering!of!personal!data!from! people,!and!the!individuals!themselves!who!have!begun!to!rely!on! apparently!‘free’!services!(from!search!to!email,!social!networking!to! YouTube).!This!symbiotic!relationship!is!currently!mutually!beneficial!–! providing!individuals!with!powerful!and!enjoyable!services!and!businesses! with!significant!economic!opportunities!–!but!there!are!significant!risks! attached,!most!directly!to!privacy!and!autonomy.!The!thesis!looks!at!the! implications!of!this!model!–!it!helps!to!explain!the!growth!in!data!and!data! gathering!methods!and!the!potential!risks!that!are!attached!to!them.!It!also! helps!to!suggest!the!primary!way!forward!posited!in!this!thesis:!the!use!of!a! rightsUbased!approach,!with!specific!rights!arising!in!relation!to!our! functioning!on!the!internet.! ! The!specific!rights!suggested!are:!a!right!to!roam!the!internet!with!privacy,!a! right!to!monitor!those!who!monitor!us,!and!a!right!to!delete!personal!data.! They!are!suggested!not!as!imposed,!purely!legal!rights,!but!as!more!natural! rights!that!arise!from!the!community,!from!what!people!feel!and!believe!are! right!–!as!well!as!being!pragmatic!rights!that!can!help!to!guide!and!shape!the! business!models!that!in!turn!guide!and!shape!the!way!that!the!internet!itself! functions.!The!thesis!argues!that!a!clearer!exposition!of!these!rights!could! help!people!to!both!be!and!feel!less!threatened,!as!well!as!helping!businesses! to!develop!more!positive!and!effective!business!models!into!the!future.! ! The!thesis!is!organised!as!follows.!Chapter!One!is!an!extended!introduction,! looking!at!the!conceptual!background!of!autonomy!and!privacy,!as!well!as! the!primary!challenges!and!criticisms!to!an!approach!based!on!autonomy! and!privacy,!particularly!in!relation!to!the!internet.!Chapter!Two!sets!out!the! theoretical!model!of!the!‘Symbiotic!Web’.! ! ! Page!4! ! Chapters!Three!to!Five!detail!the!case!studies:!the!rights!put!forward!in!the! thesis!arise!from!the!examination!of!the!case!studies.!Chapter!Three!looks!at! search!engines,!and!in!particular!the!interaction!between!Google!and!the! Article!29!Working!Party!–!and!the!idea!of!a!right!to!roam!the!internet!with! privacy!emerges!from!it.!Chapter!Four!looks!at!behavioural!advertising,!and! in!particular!the!contentious!case!of!Phorm!–!and!through!it!looks!in!some! depth!at!the!crucial!issue!of!consent,!positing!a!new!way!to!look!at!consent! in!an!interactive!internet:!‘Collaborative!Consent’.!From!this!case!study,!the! idea!of!a!right!to!monitor!those!monitoring!us!emerges.!Chapter!Five!looks! at!data!vulnerability!in!its!many!manifestations,!through!a!number!of!miniU caseUstudies,!and!from!this!emerges!the!idea!of!a!right!to!delete!personal! data,!because!ultimately!the!only!way!to!prevent!data!from!being!vulnerable! is!for!that!data!not!to!exist.! ! Chapter!Six!draws!together!the!rights!posited!in!Chapters!Three!to!Five,!and! looks!in!more!depth!and!the!nature!and!benefits!of!a!rightsUbased!approach.! It!suggests!a!new!concept!–!‘Autonomy!by!Design’!–!through!which!these! rights!might!begin!to!be!satisfied.!It!also!looks!in!more!detail!at!the!way!in! which!Murray’s!approach!of!‘symbiotic!regulation’!applies!here!–!and!at!the! role!of!the!community!in!the!process.! ! Chapter!Seven!draws!together!the!thesis,!and!looks!at!how!the!internet! might!function!if!these!rights!were!realised.!Through!this!examination!of!a! potential!future!internet!it!looks!at!how!the!critiques!and!challenges!set!out! at!the!start!of!the!thesis!may!be!met!–!and!at!the!possibilities!for!more! privacyUfriendly!future.! ! Elements!of!this!thesis!have!inspired!the!following!publications:!‘Web!2.5:! The!Symbiotic!Web’:!International!Review!of!Law,!Computers!&!Technology! (Volume!24,!Issue!1!March!2010),!‘Collaborative!Consent:!harnessing!the! strengths!of!the!Internet!for!consent!in!the!online!environment’:!International! Review!of!Law,!Computers!&!Technology!(Volume!24,!Issue!3,!Nov.!2010),! ‘Rise!and!Phall:!Lessons!from!the!Phorm!Saga’:!Chapter!13!in!‘Computers,! Privacy!and!Data!Protection:!an!element!of!choice’,!published!by!Springer,! February!2011,!and!'A!Right!to!Delete?',!European!Journal!of!Law!and! Technology,!Vol.!2,!No.2,!2011! ! I!would!like!to!thank!my!doctoral!supervisors,!Professor!Conor!Gearty!and! Professor!Andrew!Murray,!for!their!invaluable!help,!advice,!encouragement! and!support!throughout!my!research,!and!my!wife!Corina!and!daughter! Alice!for!their!support!in!every!aspect!of!my!life!and!work.! ! My!work!was!funded!by!a!Doctoral!Award!from!the!Arts!and!Humanities! Research!Council,!for!which!I!am!deeply!grateful.! ! ! ! Page!5! Table!of!Contents! Chapter!1:!Privacy,!Autonomy!and!the!Internet ............................................ 10! ! 1! Introduction!and!research!question........................................................ 10! 1.1! The!internet!in!modern!life..................................................................................................................... 12! 1.2! Data!and!the!internet................................................................................................................................. 16! 1.3! Underlying!questions!and!a!paradigm!shift..................................................................................... 18! 1.4! Approach!and!methodology:!autonomy!as!the!prime!concern ............................................... 21! 1.5! Privacy!per!se!is!not!the!central!concern.........................................................................................
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