Digital Whoness: Identity, Privacy and Freedom in the Cyberworld Rafael Capurro Michael Eldred Daniel Nagel Bibliographic information published by Deutsche Nationalbibliothek The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliographie; detailed bibliographic data is available in the Internet at http://dnb.ddb.de Cover painting by José María Guijarro Sin título water-colour 69 x 98 cm 1997 (detail) Photo by Theo Roos North and South America by Transaction Books Rutgers University Piscataway, NJ 08854-8042 [email protected] United Kingdom, Ireland, Iceland, Norway, Turkey, Malta, Spain, Portugal by Gazelle Books Services Limited White Cross Mills Hightown LANCASTER, LA1 4XS [email protected] Livraison pour la France et la Belgique: Librairie Philosophique J.Vrin 6, place de la Sorbonne ; F-75005 PARIS Tel. +33 (0)1 43 54 03 47 ; Fax +33 (0)1 43 54 48 18 www.vrin.fr 2013 ontos verlag P.O. Box 15 41, D-63133 Heusenstamm www.ontosverlag.com ISBN 978-3-86838-176-4 2013 Version 1.0 2011-2013, emended Copyright © 2011-2013 Rafael Capurro, Michael Eldred, Daniel Nagel Each author owns the copyright and bears final authorial responsibility as lead author for certain chapters or subsections of chapters, as specified. The reader will therefore notice certain differences in style and viewpoint in different chapters and subsections. Copyright 2011-2013 by Rafael Capurro, Michael Eldred, Daniel Nagel, all rights reserved. This text may be used and shared in accordance with the fair-use provisions of copyright law, and it may be archived and redistributed in electronic form, provided that the authors are notified and no fee is charged for access. Archiving, redistribution, or republication of this text on other terms, in any medium, requires the consent of the authors. The authors Rafael Capurro is Prof. emeritus, founder of the International Center for Information Ethics, Karlsruhe and editor-in-chief of the International Review of Information Ethics . His work has concentrated on a phenomenological approach to information ethics in which he has numerous publications in many languages. Books include: Information: Ein Beitrag zur etymologischen und ideengeschichtlichen Begründung des Informationsbegriffs 1978, Hermeneutik der Fachinformation 1986, Leben im Informationszeitalter 1995 and Messages and Messengers. Angeletics as an Approach to the Phenomenology of Communication 2011 (co-edited with John Holgate). Michael Eldred trained as a mathematician at Sydney University and then gained a doctorate in philosophy, where he has numerous publications in several languages in the areas of phenomenology and political philosophy. Currently he is engaged as phenomenological ethicist in the project, A Culture of Privacy and Trust for the Internet of acatech, the National Academy of Science and Engineering, Berlin. Books include Critique of Competitive Freedom and the Bourgeois- Democratic State: Outline of a Form-Analytic Extension of Marx’s Uncompleted System 1984, Phänomenologie der Männlichkeit 1999, Social Ontology: Recasting Political Philosophy Through a Phenomenology of Whoness 2008 and The Digital Cast of Being: Metaphysics, Mathematics, Cartesianism, Cybernetics, Capitalism, Communication 2009. Daniel Nagel is a solicitor in Stuttgart whose work focuses on legal issues around the internet and digital technologies. He is a member of the Jean Monnet European Centre of Excellence, University of Leeds and studied law at the University of Heidelberg, the University of Innsbruck and at Leeds University. Recent publications include ‘Beware of the Virtual Doll: ISPs and the Protection of Personal Data of Minors’ 2011 and ‘IPv 6 and Data Protection: Personalized Surfing with its Dangers for the Private Sphere’ 2011 (in German). Table of contents Acknowledgement 7 0 Introduction 9 0.1 The significance of a phenomenology of whoness as the starting- point for discussing the question concerning privacy and freedom in the internet 11 0.2 A provisional stocktaking of the discussion in information ethics on privacy and freedom in the internet age 13 0.3 Course of the investigation 15 1 Phenomenology of whoness: identity, privacy, trust and freedom 19 1.1 The trace of whoness starts with the Greeks 19 1.2 Selfhood as an identification with reflections from the world 22 1.3 Values, ethos, ethics 27 1.4 The question concerning rights: personal privacy, trust and intimacy 31 1.5 The private individual, liberty, private property (Locke) 36 1.6 The private individual and private property as a mode of reified sociation: the gainful game (classical political economy, Marx) 42 1.7 Trust as the gainful game’s element and the privacy of private property 48 1.8 Justice and state protection of privacy 53 1.9 Kant’s free autonomous subject and privatio in the use of reason59 1.10 Privacy as protection of individual autonomy — On Rössler’s The Value of Privacy 65 1.11 Arendt on whoness in the world 79 1.11.1 Arendt’s discovery of the plurality of whos in The Human Condition 79 1.11.2 The question concerning whoness as the key question of social ontology 84 1.11.3 The untenability of the distinction between labour, work and action 92 1.11.4 Whoness and the gainful game 98 1.11.5 Public and private realms? 101 1.12 Recapitulation and outlook 105 2 Digital ontology 107 2.1 From the abstraction from physical beings to their digital representation 108 2.2 Mathematical access to the movement of physical beings 110 2.3 The mathematical conception of linear, continuous time 113 2.4 Outsourcing of the arithmologos as digital code 114 2.5 The parallel cyberworld that fits like a glove 116 2.5.1 Cyberspace 122 2.5.2 Cybertime 123 3 Digital whoness in connection with privacy, publicness and freedom 127 3.1 Digital identity - a number? 127 3.2 Digital privacy: personal freedom to reveal and conceal 132 3.3 Protection of private property in the cyberworld 135 3.4 Cyber-publicness 143 3.5 Freedom in the cyberworld 149 3.5.1 The cyberworld frees itself first of all 149 3.5.2 The gainful game unleashes its freedom in the cyberworld 154 3.5.3 Human freedom in the cyberworld 156 3.6 Assessing Tavani’s review of theories and issues concerning personal privacy 157 3.7 An appraisal of Nissenbaum’s Privacy in Context 168 3.8 Floridi’s metaphysics of the threefold-encapsulated subject in a world conceived as infosphere 178 3.8.1 The purported “informational nature of personal identity” 178 3.8.2 Floridi’s purportedly “ontological interpretation of informational privacy” 192 3.9 On Charles Ess’ appraisal of Floridi’s information ethics 197 3.9.1 Informational ontology 199 3.9.2 Informational privacy 201 3.9.3 Getting over the subject-object split 204 3.10 Beavers’ response to an objection by Floridi to AI by reverting to Husserlian subjectivist phenomenology 205 4 Intercultural aspects of digitally mediated whoness, privacy and freedom 211 4.1 Privacy and publicness from an intercultural viewpoint 211 4.2 The Far East 213 4.2.1 Japan 213 4.2.2 Thailand 218 4.2.3 China 221 4.3 Latin America 224 4.4 Africa 230 4.5 Conclusion 232 5 Cyberworld, privacy and the EU 235 5.1 European integration, freedom, economics 235 5.2 The European Convention for the Protection of Human Rights and Fundamental Freedoms 239 5.3 The International Covenant on Civil and Political Rights 243 5.4 The Council of Europe Resolution on the protection of the privacy of individuals vis-à-vis electronic data banks in the private and public sectors 245 5.5 The Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data and the OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data 248 5.6 Directive 95/46/EC 253 5.7 Directive 2002/58/EC 265 5.8 Communication (2010) 609 269 5.9 Draft Regulation COM (2012) 11 final 272 5.10 Conclusion — a watertight approach? 276 6 Brave new cyberworld 281 6.1 What’s coming 281 6.2 e-Commerce 283 6.3 Forgetfulness 287 7 Bibliography 289 8 Name index 307 Acknowledgement This study arose in the context of the project, A Culture of Privacy and Trust for the Internet of acatech, the National Academy of Science and Engineering, Berlin in 2011-2013, of which the authors were part. An abridged version was published: Rafael Capurro, Michael Eldred & Daniel Nagel ‘IT and Privacy from an Ethical Perspective — Digital Whoness: Identity, Privacy and Freedom in the Cyberworld’ in Buchmann, Johannes (ed.) Internet Privacy - Eine multidisziplinäre Bestandsaufnahme/A Multidisciplinary Analysis Berlin: Springer 2012 pp. 63-141. Sola autem nos philosophia excitabit, sola somnum excutiet gravem. But only philosophy will wake us up, only it will shake off the heavy sleep. Seneca Epistulae ad Lucilium Ep. LIII 0 Introduction On Wednesday, when the sky is blue, And I have nothing else to do, I sometimes wonder if it’s true That who is what and what is who. A. A. Milne Winnie-the-Pooh The concept of privacy cannot be adequately determined without its counterpart, publicness. Privacy and publicness are not properties of things, data or persons, but rather ascriptions dependent upon the specific social and cultural context. These ascriptions relate to what a person or a self (it may also be several selves) divulges about him- or herself. A self, in turn, is not a worldless, isolated subject, but a human being who is and understands herself as always already interconnected with others in a shared world. The possibility of hiding, of displaying or showing oneself off as who one is, no matter in what way and context and to what purpose, is in this sense, as far as we know, peculiar to human beings, but precisely not as the property of a subject, but rather as a form of the interplay of a human being’s life as shared with others.