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In the era of information, administration of personal data protection mingles with expectations of access to information as well as the overall sense of cyber (in)security. A failure to appropriately consider the system of data processing relationships easily reduces personal data protection to assurances in letter. The complexity of contemporary data transactions demands a systemic and structured normative approach to personal data protection. Any evaluation of relevant norms should not be isolated from factors that determine or condition their implementation. As privacy is an intrinsically subjective claim, enforcing data privacy is premised on data subject’s personal participation in the protection of her data.
Privacy online: up, close and personal
Eneken Tikk
Received: 8 October 2016 /Accepted: 16 May 2017
#The Author(s) 2017. This article is an open access publication
Abstract In the era of information, administration of
personal data protection mingles with expectations of
access to information as well as the overall sense of
cyber (in)security. A failure to appropriately consider
the system of data processing relationships easily re-
duces personal data protection to assurances in letter.
The complexity of contemporary data transactions de-
mands a systemic and structured normative approach
to personal data protection. Any evaluation of relevant
norms should not be isolated from factors that deter-
mine or condition their implementation. As privacy is
an intrinsically subjective claim, enforcing data privacy
is premised on data subjects personal participation in
the protection of her data.
Keywords Data protection .Privacy .Security .
1 Introduction
Privacy is a much-addressed problematique, intensified
against the backdrop of development and propagation
of information technologies, their convergence with tele-
communication and electronics as well as socio-
technical trends like big data, cloud, and the Internet
of Things (IoT). Normative
guarantees to personal data
The term normativeis used throughout the article as a synonym to
regulatory, with the important emphasis on regulationbeing a
broader term than legislationor legally binding norms.Asmany
contemporary privacy issues have yet to settle in national and inter-
national consciousness and response, the word normativeis intended
to underline that normsrelated to privacy protection are evolving,
not only as binding regulatory instruments are adopted, but, also by
way of court rulings, market developments, standardization, social
attitudes and non-binding normative instruments, such as policies
and strategies. For a great account on norms in this respect, see
Finnemore, Martha (2011) [1]
This article makes use of the European language of personal data
protection law. The European Union is currently undergoing a person-
al data protection reform. This article makes reference to the regula-
tory framework applicable as of October 1, 2016. Occasional reference
shall be made to provisions of the Regulation (EU) 2016/679 of the
European Parliament and of the Council of 27 April 2016 on the
protection of natural persons with regard to the processing of personal
data and on the free movement of such data, and repealing Directive
95/46/EC (General Data Protection Regulation) and Directive (EU)
2016/680 of the European Parliament and of the Council of 27
April 2016 on the protection of natural persons with regard to the
processing of personal data by competent authorities for the purposes
of the prevention, investigation, detection or prosecution of criminal
offences or the execution of criminal penalties, and on the free move-
ment of such data, and repealing Council Framework Decision
2008/977/JHA. These instruments shall apply as of May 2018.
According to Article 2(a) of Directive 95/46/EC (Article 4 (1) of
the General Data Protection Regulation) personal data means any in-
formation relating to an identified or identifiable natural person (data
subject); an identifiable person is one who can be identified, directly
or indirectly, in particular by reference to an identification number or
to one or more factors specific to his physical, physiological, mental,
economic, cultural or social identity.
This article is part of the Topical collection on Privacy and Security of
Medical Information
*Eneken Tikk
59 van Lansbergestraat, 2593 SB Den Haag, Netherlands
Health Technol.
DOI 10.1007/s12553-017-0197-z
protection need to stand the test of their time to guarantee
infor mational self-determination in the context of online
data processing
and automated decision-making.
In the era of commodification of all data [2], administration
of personal data protection is intrinsically linked to societal
expectations of access to information as well as the overall
sense of cyber
The proper alignment of com-
peting interests and practices is the premise of a functioning
establishment of human rights and freedoms online. In case of
failure to appropriately consider the system of data exchange,
personal data protection guarantees remain assurances in
Given the fundamental complexity of contemporary
data processing relationships there is acute need for a
systemic and structured normative approach to data pro-
tection of which personal data protection is a part. The
claims of privacy and personal data protection need to
be considered in the context of prevalent trends of freedom of
information and expression, as well as, competing claims
of security. Developing national and international per-
sonal data protection regimes needs to acknowledge the
need for broad and systemic safeguards to privacy on-
line that go far beyond explicit personal data processing
Any evaluation of norms of personal data protection
should not be isolated from factors that determine or
condition their implementation. As privacy is an intrin-
sically subjective claim, enforcing data privacy requires
personal participation. This article will conclude that
individualityis the fundamental element of data privacy reg-
ulation. The density and sophistication of modern-day data
processing relationships complicate the implementation and
enforcement of (especially paternalistic) data protection
regimes, in particular by impairing the individuals
own involvement in data processing relationships.
With privacy being a commodity upon request, person-
al participation is a necessary condition for reinforcing
privacy online. Guaranteeing, and perhaps even enforcing,
per son al p art i ci p ati on is therefore a crucial consider-
ation in national personal data protection regulation and
2 Interests and expectations: Qui bono?
2.1 Competing rationales
The contemporary data privacy discourse is a meeting of ra-
tionales and justifications, a competition of terminologies, a
convergence of technological imperatives, a contest of politi-
cal and normative agendas and structures, the impossibility of
extra-territorial normativism all attaching to the mystery of
human-social behavior.
Assurances of personal data protection have emerged
around various rationales. In Europe, requests for clear
government justification for intrusions in private life are
hard-coded in the European paradigm of data protec-
Privacy is centered upon the right of individual
self-determination, emphasizing onesselfagainst
communities. Early European guarantees of privacy
targeted the relationship between the individual and the
Crown, the Church, and the State.
Communitys paternalistic promise of personal data pro-
tection stand personal dignity and integrity of the
In the Anglo-American conception, early demands for
privacy arose in the 1880s, against the push for public-
ity by corporate actors. [5,6] In the US, prominent
values of the right of complete immunity; the right to
be let alonehave been solitude and cover against me-
dia publicity, government scrutiny and inviolability of
private property. [7] The value of information, here, is
acquired administrative and national security dimensions
over time, the US privacy legislation remains a highly
fragmented one.
In technologically ambitious countries, personal data
protection regimes have recently emerged as a
supporting mechanism to economic growth awaited
from a vibrant ICT society. [10] Yet even in jurisdic-
tions with no significant ICT economy or contested
freedom of information
personal data protection laws
emerge against the backdrop of national automated data
processing solutions,
or as export agendas, part of
According Article 2(b) of Directive 95/46/EC(Article 4 (2) of the General Data
Protection Regulation) processing refers to any operation or set of operations
which is performed upon personal data, whether or notby automatic means,such
as collection, recording, organization, storage, adaptation or alteration, retrieval,
consultation, use, disclosure by transmission, dissemination or otherwise making
available, alignment or combination, blocking, erasure or destruction.
According to Article 15 (a) of Directive 95/46/EC Member States shall grant the
right to every person not to be subject to a decision which produces legal effects
concerning him or significantly affectshimandwhichisbasedsolelyonauto-
mated processing of data intended to evaluate certain personal aspects relating to
him, such as his performance at work, creditworthiness, reliability, conduct, etc.
See a discussion of cyberunder technological imperatives.
See Tikk, Eneken, Zaure Agnes (eds) (2015) [3].
This is underlined in the infamous Census ruling of the German
Bundesverfassungsgericht from 1983 (BVerfG 15.12.1983. In BVerfGE 65,
1 et seq., EuGRZ 1983, 577: Urteil desErsten Senats vom 15. Dezember 1983
auf die mündliche Verhandlung vom 18. und 19. Oktober 19831BvR209,
269, 362, 420, 440, 484/83) and explained thoroughly in the case law of the
European Court of Justice and the European Court of Human Rights.
For a thorough account, see Kloepfer, Michael (2002) [4].
See Branscomb, Anne Wells (1994) [8].
See, e.g. Hunton & Williams, Jay, Rosemary P. (ed.) (2012) [9].
See BFreedom of the Net 2015 Report^[11].
For example Russia, Federal Law No. 152-FZ on Personal Data
2006 (Personal Data Protection Act), available at
Health Technol.
capacity building.
Importantly, in some cases, norma-
tive guarantees for personal data protection can be
traced to clustered confidentiality concerns, often in
the field of financial services, or health care.
One can note from these various justifications, the potential
differences, in both expectations, and guarantees to personal
data protection, across jurisdictions. The above accounts al-
low modeling personal data protection as layers of expecta-
tions with corresponding explicit regulations and policies as
well as implicit assumptions of the individual, the user.
Every ascending layer contributes predictability, and
transparency to automated data processing. However,
every personal data protection regime requires a dense
national data privacy architecture. Each layer reflects
distinct practices and expectations that condition norma-
tive measures and individual behavior. As such, the ta-
ble summarizes various possible frameworks of analysis
and argument (Table 1).
2.2 Technological data processing imperatives
Contributing to the complexity are the technological impera-
tives related to personal data processing. Data transactions
have become daily routine of general government and busi-
ness functions. Cross-border data flows are critical to enabling
the functionality of the global financial systems, trade, logis-
tics and transportation, crisis coordination and national de-
fence. Only after several decades of development of interna-
tional information infrastructure, and in-built ICT-depen-
dence, has it come to the political awareness, that ICT-
dependence entails threats and risks. These are still to be fully
understood at national and international level. The pace of
ICT development demands constant (re) assessment and mit-
igation of privacy risks.
Personal data protection guarantees are conditioned in the
state of information society development and the accompany-
ing discourse of cyber security. In Europe, the Network and
Information Security Directive
(NIS) emphasizes the es-
sence of reliability, and security of network and information
systems to the functioning of economic and societal activities,
which make up the internal market. This instrument highlights
the necessary link between cybersecurity and personal data
protection, admitting that, providing personal data guarantees
needs to be made a priority, in providing ICT security.
Providing ICT security is a much broader set of issues than
that of personal data protection.
For a vast majority of countries, also in Europe, ICTs are
imported technologies. For technologically less developed
countries, proliferation of ICTs have been a result of political
campaigns, run via international organizations and entities,
including ITU and the World Bank.
As a result, providing
security of devices and systems is not a matter of solely na-
tional capacity or competence. In this context it is easy to lose
sight of technological imperatives and conditioning factors of
personal data processing.
Further to the difficulty of national accountability for
information security, international data exchange occurs
over telecommunication technologies
that are by defi-
nition cross-border. In sum, national level capacity to
provide the security of information and information in-
frastructure, is a troublesome variable as can be seen in
the international cybersecurity dialogue, notably the re-
ports of the UN Group of Governmental Experts on
international information security.
Furthermore, the term cyberis obscure as to the
terms, technologies and trends involved in it. Depending
on the venue and actor, cyberspacecan refer to the
Internet, telecommunication, dedicated military communi-
cations network, or all the above. On the same note, cy-
bersecurity risks, most of which are associated with data,
can materialize at the vendor, network operator, service or
content provider level as well at the insufficient user
awareness level. The vagueness of the term contributes
to the lack of visibility into the nature and causing factors
of personal data protection.
Similarly, technology market trends such as the Internet of
Things (IoT), or the Cloud are often difficult to assess in terms
of their impact on guarantees to personal data protection. As
noted by the Article 29 Working Party, processing of data in
the context IoT relies on the coordinated intervention of a
See, e.g. BConnecting_Africa: An Assessment of Progress Towards the
Connect Africa Summit Goals^, African Development Bank Group (2013) [12].
E.g. Dubai International Financial Centre Data Protection Law, available at
No._1_of_2007.pdf; see also Rodrigues RJ, Wilson P, Schanz SJ (2001) [13].
Directive (EU) 2016/1148 of 6 July 2016 concerning measures for a high
common level of security of network and information systems across the
See Al Gores speech at the inauguration of ITU First World
Telecommunication Development Conference BInauguration of the First
World Telecommunication Development Conference (WTDC-94), Remarks
prepared for delivery by Al Gore^, 1994, available at
pub/itu-s/oth/02/01/S02010000414E05PDFE.PDF. See also the proceedings
of the ITU 1998 Minneapolis Plenipotentiary, especially BITU Efforts to
Build a New Global Information Infrastructure^,available at https://www.
analysis of relevant modi operandi, see Weaver, Catherine (2008) [14].
Brunsson, Nils (1989) [15].
For the purpose of this article, telecommunication is understood as defined
by the ITU: any transmission, emission or reception of signs, signals, writing,
images and sounds or intelligence of any nature by wire, radio, optical or other
electromagnetic systems. ITU; International Telecommunication Convention,
1959 [16].
The UN Group of Governmental Experts on International Information
Security convened under the aegis of the UN Disarmament and Security
Committee. See the Groups reports from 2013 and 2015 (available at
Health Technol.
significant number of stakeholders, such as device manufac-
turers sometimes also acting as data platforms; data
aggregators or brokers; application developers; social plat-
forms; device lenders or renters.
Cloud computing brings
the element of extraterritoriality and the resulting concerns
of effective and legal control over data. Big Data, adds dimen-
sions of aggregation to the point - where full anonymization
becomes questionable
2.3 Actor interests
Further confusing the structure and nature of privacy
risks, let alone personal data protection guarantees,
are a variety of actors with diverging motivations, in-
terests, goals and practices. For the most part, cyberse-
curity and risk management discourse has focused on
government acts, and/or omissions. Curiously, so has
the discussion of automated data processing issues the
past couple of decades.
After years of contested data
retention practices,
adequacy of national threat assessments
and cross border transfers,
governments, especially since the
Snowden revelations, have been put in the spotlight of the cur-
rent privacy discourse.
Security as a stand-alone theme is at least as com-
plex and controversial as privacy. A confrontational,
either-or, approach is likely to lead to fundamental
conflicts between data protection and security organi-
zations. It is essential to contextualize the discourse of
privacy within the international cyber security dia-
logue without explicit universal data protection rem-
edies and guarantees national restrictions and grants
of privacy are subject to sovereign decision-making.
The boundaries of privacy in the context of national
security are ambiguous.
Less controversial are clear legislative guarantees and
practical measures against mental and physical threats to
human beings. Contested are, instead, contextual and
contingent government and business-administrative
claims of security as a justifying factor for abstract pri-
vacy restrictions. Regardless of the regime, or the busi-
ness model in question, such assertions often share lack
of transparency as a common thread. Joseph A.
Cannataci, the UN Special Rapporteur on the right of
privacy notes some of the highly problematic and demanding
aspects: the adequacy of oversight mechanisms; the need for,
and proportionality of, such measures in a democratic society;
as well as the cost-effectiveness and the overall efficacy
of such measures.
The reported State-on-State prac-
tices of development and use of cyber capabilities to
Article 29 Data Protection Working Party; BOpinion 8/2014 on the on
Recent Developments on the Internet of Things^, 16 September 2014, avail-
able at
opinion-recommendation/files/2014/wp223_en.pdf, page 4.
OECD; Recommendation of the Council concerning Guidelines Governing
the Protection of Privacy and Transborder Flows of Personal Data, C(80)58/
FINAL, 23 September 1980. CoE; Convention for the Protection of
Individuals with regard to Automatic Processing of Personal Data, 28
January 1981. Directive 95/46 and the surrounding public debates mainly
emphasized the risk of personal data resulting from government processing.
See, e.g. ECtHR; S. and Marper v. The United Kingdom, 4 December
2008.; CJEU Judgment in Joined Cases C-293/12 and C-594/12.
See, e.g. ECtHR; Weber and Saravia v. Germany, 9 June 2006, § 78;
Kennedy v. the United Kingdom, 18 May 2010; Association for European
Integration and Human Rights and Ekimdzhiev v. Bulgaria, 28 June 2007;
Liberty and Others v. the United Kingdom, 1 July 2008.
According to the EU data protection regulation, personal data canonly be
transferred to countries outside the EU and the EEA when an adequate
level of protection is guaranteed. The Commission has so far concluded that
outside the EU and EEA, only Andorra, Argentina, Canada, Switzerland,
Faeroe Islands, Guernsey, Israel, Isle of Man, Jersey and New Zealand meet
the adequacy standards (see EC; BCommission decisions on the adequacy of
the protection of personal data in third countries^, available at http://ec.europa.
special regime for exchange of personal data with the US has been in place
(and contested). After, the Court of Justice of the European Union had declared
the Commissions 2000 Decision on EU-US Safe Harbour invalid on 6
October 2015 (CJEU, Judgment in Case C-362/14), the Commission adopted
on 12 July 2016 by its decision a new set of exemption rules, The EU-U.S.
Privacy Shield (see EC; BThe EU-U.S. Privacy Shield^, available at http://ec.
index_en.htm). See also Weiss, Martin A., Archick, Kristin (2016) [17].
On June 5, 2013 the British Newspaper the Guardian published the first
article in a series based on information stolen and leaked by Edward Snowden,
a former NSA contractor. See Greenwald, Glenn; BNSA collecting phone
records of millions of Verizon customers daily^, The Guardian, 6 June 2013,
available at
records-verizon-court-order. For the timeline and themes of Snowden
revelations see Aljazeera America; BTimeline of Edward Snowdens
revelations^, available at
UN Human Rights Council, A/HRC/31/64, Report of the Special
Rapporteur on the right to privacy, Joseph A. Cannataci, 8 March 2016.
Tabl e 1 Main personal data protection incentives
Values/goals Signified in
Personal dignity and
Integrity of the individual [Layer 6]
Protections against
public scrutiny and
inviolability of private
Commercial value of data [Layer 5]
Trust in technology Laymans implicit assumption [Layer 4]
Administrative efficiency Government functionalism [Layer 3]
Capacity Building Assistance and aid [Layer 2]
Sectorial or business
incentives and
Business functionalism [Layer 1]
Health Technol.
access, monitor, capture or ex-filtrate electronically
transmitted or stored data.
Data is military target by definition. It is a founding
block for intelligence and situational awareness. Cyber
military capabilities enable to deny, or manipulate
adversarys (or potential adversarys) decision-making,
through targeting not only information infrastructure,
or the message/content itself, but also a cyber-persona.
The latter as defined by the U.S. joint doctrine on in-
formation operations refers to Ban online identity that
facilitates communication, decision-making, and the
influencing of audiences in the cognitive dimension^.
Cyberspace capabilities are bringing online identity to
the list of military targets.
The private sector as well as public-private partnerships are
involved and interested in gathering, analyzing and dissemi-
nating intelligence and other data of government interest.
Cannataci emphasizes in his report to the Human Rights
Council, the organic growth over the past two and a half de-
cades, of appetite for all kinds of personal information by
private corporations.
He concludes that personal data has
become a marketable and tradable commodity, meaning that
the incentive for changing the business model simply on
account of privacy concerns is rather low.
Private sector
manipulation of personal data has glided from a side-show
to the big screen.
For the foreseeable future, obtaining data requires a two-
way partnership between government and the private sector.
Such symbiosis will require give and take from both sides. In
an appetite for control, governments are less likely to signifi-
cantly sever the private sectors ability to collect and process
personal data for optimizing their production and service pro-
cesses. A few prominent examples against this trend are not
demonstrative of guarantees of personal privacy, but of busi-
ness interests, where they overlap with normative guarantees
to personal data protection. In 2016, a face-off between the US
government and Apple about secrecy of iPhone communica-
tions resulted in a legally unsatisfying solution where, absent
Apple cooperation, the US law enforcement decided to seek
outside technical assistance to access private communications
of a terrorist suspect. [18] In 2014, the US Government had to
give in to Microsofts position that data of a US company
outside the US jurisdiction is not readily available to browse
for the government.
Anyone who wishes to participate in the exchange of in-
formation and ideas in the modern world of global communi-
cations is nowadays obliged to use transnational digital com-
munication technology.
The push of next billion people
is supported by businesses and their macro-
economic interests. Both industry and governments are antic-
ipating growth of online population and connectivity.
push for further development and proliferation of ICTs is a
central element of national digital strategies, industry politics
and development support.
Legal guarantees to personal privacy are to be measured
vis-à-vis the push and demand of information as well as the
expectations towards societal security and stability.
Just as
ICTs have become an integral part of daily life, thinking about
privacy and security needs to become integrated across vari-
ous disciplines, within and beyond legal realms. Privacy and
security in the context of ICTs is equally a matter of education
policy, consumer protection, combat against crime and nation-
al industrial policy. Developing and assessing personal data
protection as a stand-alone regulatory regime cannot be
enough to adequately, and, or efficiently deal with risks and
threats associated with present-day data processing.
See, e.g. MI5; BDirector General Speaks on Terrorism, Technology and
Oversight, Address by the Director General of the Security Service, Andrew
Parker, to the Royal United Services Institute (RUSI) at Thames House, 8
January 2015^, available at
speaks-on-terrorism-technology-and-oversight. The range and severity of
threats the UK has faced over the years has meant that we have needed to
build substantial security and intelligence capabilities. MI5, with our close
partners in GCHQ, SIS, and the police together embody an intelligence and
security effort of a quality that is the envy of many partner nations. (para 34).
Also see White House; BRemarks by the President on Review of Signals
Intelligence^, 17 January 2014, available at
Today,new capabilities allow intelligence agencies to track who a terrorist is in
contact with, and follow the trail of his travel or his funding. New laws allow
information to be collected and shared more quickly and effectively between
federal agencies, and state and local law enforcement. Relationships with
foreign intelligence services have expanded, and our capacity to repel cyber-
attacks have been strengthened.
U.S. Joint Chiefs of Staff; BInformation Operations, Joint Publication 3
13^, 27 November 2012, renewed 20 November 2014, p. II-9, available at
Publication 312 (R) Cyberspace Operations^, 5 February 2013, available at, describing cyberspace
to consist of the layers of physical network, logical network, and cyber-
persona, each representing a layer where cyber operations may be
conducted. Yet cyber-persona may refer to a person, group or a state actor,
an actor which has a distinct identity and respective cyber-technical attributes.
2016 Special Rapporteur Joseph A. Cannataci on the right to privacy, page
5, para 9.
2016 Special Rapporteur Joseph A. Cannataci on the right to privacy, page
5, para 9.
UNGA, A/69/397, Promotion and protection of human rights and funda-
mental freedoms while countering terrorism, 23 September 2014, page 8.
See, for instance, Sawers, Paul (2016) [19]. Rusli, Evelyn M. (2015) [20].
See, e.g. ITU Backgrounders; BConnect 2020: Setting a Global Agenda for
the ICT Sector^; Plenipotentiary 2014, Busan Korea, available at https://www.
The World Bank; BMaximizing Mobile, 2012 Information and Communications
for Development^, 2012, available at
Resources/IC4D-2012-Report.pdf. See also UK; BDigital Inclusion Strategy^,4
December 2014, available at
See, e.g. White House (2011) [21].
Health Technol.
3 The (regulatory) framework of privacy
Current legal guarantees to privacy have evolved over several
decades of societal and technological development, yet they
are far from conclusive. As Prosser notes, early judicial de-
bates in the US courts about privacy were preoccupied with
the question whether the right of privacy existed at all, there-
fore giving little or no consideration to what it would amount
to if it did. [22] Prossers observation reminds the sometimes
hard-to-digest maxim, that judicial and regulatory steps al-
ways emerge against societal demand. What has been distilled
in the course of history, may be outdated for the purposes of
state of the art.
The something over three hundredcases tried in the US
courts by 1960 had distilled the four tortsof privacy,
offered little immediate insight into the forthcoming trend of
automated data processing. Instead, those and many other
cases and problem-specific regulations testify of a collage-
like national data protection regime.
In contrast, the EU framework of personal data protection has
become thick and detailed, considering a variety of threat actors,
responding to global data processing trends, and empowering
thedatasubjectto the point where whole protectorates are put
in her service at national and the community level.
The European Union has a demonstrable track record as a
normative data protection power, measured less in cases and
more in pages of mandatory and recommended guidance.
The main legal pillar in the EU data protection system is
Personal Data Protection Directive (Directive 95/46/EC),
dated for the purposes of online privacy by Directive 2002/58/
Recently omitted from this line-up is the controversial
Data Retention Directive 2006/24/EC.
Article 29 Working
has issued over two hundred guidelines pertaining to
specific data processing practices and issues.
The Court of
Justice of the EU has contributed its share
with the Right to
Be Forgotten ruling,
push-backs on data retention
and a
revision of the EU-US Safe Harbour agreements.
However, the latest trends in the European data protection
landscape evidence of the difficulty of a harmonized solution.
Invalidation of the Data Retention Directive in 2014 is an ex-
ample of non-survival of a sectorial interest, although the al-
ready transposed Directive largely lives on in national legisla-
tion. The renewed EU-US Privacy arrangement, this time
dubbed EU-US Privacy Shield
is another. The Network and
Information Systems Directive
is an attempt to increase se-
curity in information systems, essential services and digital
services. In line with the EU image as a personal data protection
stronghold, the General Data Protection Regulation, to be in-
force as of 2018, will seek to instate the requirements of privacy
by design and by default.
Fragmentation of personal data
protection measures is also inevitable when data protection
pockets are created for isolated transactions or services.
Ibid. 1. Intrusion upon the plaintiffs seclusion or solitude, or into his private
affairs. 2. Public disclosure of embarrassing private facts about the plaintiff. 3.
Publicity which places the plaintiff in a false light in the public eye. 4.
Appropriation, for the defendants advantage, of the plaintiffsnameor
A discussion of the US personal data protection law remains beyond the
margins of this article. For a good overview, see BData Protection and Privacy
in 26 jurisdictions worldwide 2014^, available at
States_GTDT_Data_Protection_and_Privacy_2014.pdf, US pages 191198.
For a great overview, see Mayer-Schönberger, Viktor (1997) [23].
Working Party 29 has released over 200 opinions since 1997. Opinions and
recommendations available at
Directive 95/46/EC of the European Parliament and of the Council of 24
October 1995 on the protection of individuals with regard to the processing of
personal data and on the free movement of such data; OJ L 281, 23.11.1995.
Directive concerning the Processing of Personal Data and the Protection of
Privacy in the Electronic Communications Sector, OJ L 201, 31/07/2002. As
amended by Directive 2009/136/EC of 25 November 2009 amending
Directive 2002/22/EC on universal service and usersrights relating to elec-
tronic communications networks and services. Directive 2002/58/EC
concerning the processing of personal data and the protection of privacy in
the electronic communications sector and Regulation (EC) No 2006/2004 on
cooperation between national authorities responsible for the enforcement of
consumer protection laws; OJ L 337/11, 18/12/2009.
Directive 2006/24/EC of the European Parliament and of the Council of 15
March 2006 on the retention of data generated or processed in connection with
the provision of publicly available electronic communications services or of
public communications networks and amending Directive 2002/58/EC. On
April 8, 2014, the Court of Justice of the European Union, the highest court
of the EU, declared the data retention directive invalid. See further, CJEU;
Judgment in Joined Cases C-293/12 and C-594/12, Press and Information
Digital Rights Ireland and Seitlinger and Others, 8 April 2014.
Article 29 WP set up under the Directive 95/46/EC as an independent
advisory group to address acute issues of personal data protection. It is com-
posed of representatives of the supervisory authorities designated by each EU
country; representatives of the authorities established for the EU institutions
and bodies; and a representative of the European Commission.
For a full list, see WP29; Opinions and Recommendations, available at
For a good overview of ECJ rulings related to personal data protection, see
Laudati Laraine (2016) [24].
CJEU; Case C-131/12, Google Spain SL and Google Inc. v Agencia
Española de Protección de Datos (AEPD) and Mario Costeja González, 14
May 2014.
CJEU; Joined Cases C-293 & C-594/12, 8 April 2014, Digital Rights Ir.
Ltd. v. Minister for Comm. Marine & Natural Res., paras. 6973.
CJEU; Case C-362/14, Maximillian Schrems v. Digital Rights Ireland Ltd.,
13 November 2015. European Commission decision from 12 July 2016. Privacy
Shield replaces the earlier Safe Harbour agreementinvalidated by ECJ in
October 2015, after it found that Safe Harbor failed to meet EU data protection
standards, in large part because of the U.S. surveillance programs.
See Directive (EU) 2016/1148 of 6 July 2016 concerning measures for a high
common level of security of network and information systems across the Union.
See Article 25 of the Regulation (EU) 2016/679 of the European Parliament
and of the Council of 27 April 2016 on the protection of natural persons with
regard to the processing of personal data and on the free movement of such
data, and repealing Directive 95/46/EC, OJ L 119, 4.5.2016. See also, Allen &
Overy (2016) [25].
Dubai International Financial Centre Data Protection Law embodies inter-
national best practice standards in line with EU directives and OECD guide-
lines. See BDIFC Data Protection^, available at
Health Technol.
Regardless of the kind of art chosen to resolve pri-
vacy from regulatory perspective, the diverging and
competing elements make development and implemen-
tation of existing privacy regulations challenging.
is useful, therefore, to ask, what are the underlying
considerations of the current privacy regulation. The
enshrined in Article 6 of the Personal
Data Protection Directive constitute a cornerstone of
EU data protection law. The most foundational princi-
ple is the requirement of justification for intrusion into
the privacy of the individual, whatever means
employed. [26] Such justification requires disclosure
from State authorities or informed consent in private
data processing relations. This principle demands that
relevant legal provisions and information is made clear,
transparent and available in a timely manner. Other
principles, notably fairness, clarity of purpose, adequa-
cy and transparency of processing constitute and func-
tion as valuable guidelines for any personal data protection
Also, in the European view, personal data protection
measures are proscribed in a risk-neutral manner. It
does not attach to any particular risk (f)actors. Article
17 of the Personal Data Protection Directive provides
that the controller, regardless of whether it is a gov-
ernment or corporate or even individual actor, Bmust
implement appropriate technical and organisational
measures to protect personal data^. The controller
must, where processing is carried out on his behalf,
choose a processor providing sufficient guarantees in
respect of the technical security measures and
organisational measures governing the processing to
be carried out^. Such security measures are to be im-
plemented considering the specific operational constraints
and modalities.
One must take a critical view towards how these
principles are implemented in practice. With all the
rules and principles to be thrown against the issue of
privacy, there is a disturbing mismatch between the al-
leged and perceived adequacies of existing privacy reg-
ulations. A 2015 Eurobarometer on data protection
showed that trust in digital environments remains low.
The survey found vast majority of the respondents
(81%) worried about having partial (50%) or no (31%)
control over the information they provide online, while
only 15% felt they have complete control.
was highest towards medical institutions and lowest in
online businesses, especially social media.
While exact
numbers and the methodology of achieving them are
surprisingly obscure for information age, the National
Cyber Security Alliance Consumer Privacy Index
92% of US consumers worried about their privacy online.
Of the Australians online, 85% believe data breach notifica-
tion should be mandatory for business. [27].
It is only natural that against all these concerns and risks,
perceived or real, the quest for international data privacy guar-
antees has emerged. There is currently no universal legal in-
strument on personal data protection. Universally accepted
guarantees to data privacy follow from numerous Human
Rights instruments, notably Article 17 of the International
Covenant on Civil and Political Rights.
Mirror provisions
can be found in regional instruments.
It has been af-
firmed in several instances that international human
rights guarantees apply online.
Such as lack of review of data prior to publication and impossi-
bility of a quality consent and grave limitations to anonymity in the
context of IoT; lack of awareness about presence of data processing
equipment or the identity of the data controller in case of drones;
lack of effective control over data or lack of jurisdiction transparen-
cy in case of cloud computing. For a detailed discussion, see Article
29 Working Party Opinions: Opinion 8/2014 on the Recent
Developments on the Internet of Things (2014), Opinion 05/2012
on Cloud Computing (2012), Opinion 01/2015 on Privacy and Data
Protection Issues relating to the Utilisation of Drones (2015).
According to Article 6, personal data must be (a) processed fairly
and lawfully; (b) collected for specified, explicit and legitimate pur-
poses and not further processed in a way incompatible with those
purposes. Further processing of data for historical, statistical or scien-
tific purposes shall not be considered as incompatible provided that
Member States provide appropriate safeguards; (c) adequate, relevant
and not excessive in relation to the purposes for which they are
collected and/or further processed; (d) accurate and, where necessary,
kept up to date; every reasonable step must be taken to ensure that
data which are inaccurate or incomplete, having regard to the pur-
poses for which they were collected or for which they are further
processed, are erased or rectified; (e) kept in a form which permits
identification of data subjects for no longer than is necessary for the
purposes for which the data were collected or for which they are
further processed. Member States shall lay down appropriate safe-
guards for personal data stored for longer periods for historical, sta-
tistical or scientific use.
EC; BData protection Eurobarometer out today^, 24 June 2015, available at
StaySafeOnline; BTruste/National Cyber Security Alliance U.S. Consumer
Privacy Index 2016 Infographic^,availableat
UN; International Covenant on Civil and Political Rights, adopted 1966, in
force 1976, Article 17. UNGA, Resolution 217 A, The Universal Declaration
of Human Rights, 1948. It provides that Bno one shall be subjected to arbitrary
or unlawful interference with his or her privacy, family, home and correspon-
dence, nor to unlawful attacks on his or her honour and reputation^.Itfurther
provides that Beveryone has the right to the protection of the law against such
interference or attacks^.
UDHR, Art. 19. See also ICCPR, Art. 19(2); ECHR,Art. 10(1); ACHR, Art
See, e.g., Human Rights Council resolution 26/13, 20 June 2014; UNGA,
A/RES/68/167, 21 January 2014, para. 10; Council of Europe Convention on
Cybercrime, preamble, Art. 15.1; Deauville Declaration of the G8 Countries,
Art. 10, 2627 May 2011; Agreement between the Governments of the
Member States of Shanghai Cooperation Organization on Cooperation in the
field of International Information Security, Art. 4(1), 16 June 2009;
International code of conduct for information security, A/69/723, 13 January
Health Technol.
resolved for freedom of expression,
as well
as freedom of opinion.
However, based on different
belief-systems, societal values and administrative tradi-
tions understanding and practices to content and scope
of entitlements vary considerably from State to State.
Recent trends in data privacy regulation outside Europe
do not indicate prevalent subscription to the European
standard of personal data protection.
In the context of intensifying surveillance and espionage
practices, calls have been made to address guarantees to pri-
vacy at international level. In December 2013, the General
Assembly adopted resolution 68/167 on the right to privacy
in the digital age, initiated by Brazil and Germany.
In that
resolution, the Assembly affirmed that the right to privacy
must be protected online, and called upon all States to review
their procedures, practices and legislation related to commu-
nications surveillance, interception and collection of personal
data, emphasizing the need for States to ensure the full and
effective implementation of their obligations under interna-
tional human rights law.
Normative-declaratory guarantees to human rights online
as they are guaranteed offline are more than a blanket exten-
sion of existing guarantees they are a call for an inventory of
the catalogue of relevant concerns and an invite to discuss
how existing legal instruments can be applied to adequately
address online activities/presence. Human rights online will
generally remain a reflection of human rights protections
Today, in most jurisdictions the level of privacy
guarantees in relation to ones online activities is likely
worse due to the lack of full comprehension of the
issue, and the lack of adequate technical and organiza-
tional capacity to protect data. Resting on the conclu-
sion that applicability human rights online will resolve
issues of data privacy is as deceiving as concluding that
because we have International Humanitarian Law all
human suffering has ended during conflicts.
4 The need for a structured normative approach
The discussion of issues and solutions reveals the necessary
building blocks and elements of a coherent personal data pro-
tection regime, while also detailing some of the difficulties of
personal data control as well as individual enforcement
of online privacy rights. Broadening the perspective of
personal data protection to data security is most essen-
tial when seeking for a holistic normative framework for
securing rights online.
A solid international framework for personal data protec-
tion is well beyond political reality. Given the fragmentation
and different interpretations
of the existing human rights
instruments and the still considerable divide between national
priorities and capabilities a universal personal data protection
instrument is highly unlikely.
Developing coherent personal data protection regimes on
top of international human rights instruments is paramount for
giving the individual an effective remedy against malicious or
negligent processing of data. At national level, regulatory pro-
tections to privacy comprise legal and non-legal frameworks
beyond that of dedicated personal data protection laws.
Guarantees of personal data protection materialize in full via
different, yet interlinked, instruments and norms.
UDHR Art. 19; ICCPR Art. 19(2); ECHR Art. 10; ACHR, Art. 13; ACHPR
Art. 9. See also Human Rights Committee, General Comment No. 34, para. 12
(Nov. 2, 1999); Report on the right to freedom of opinion and expression,
2011, paras. 2022; Report on the right to freedom of opinion and expression,
2015, para. 11; EU Human Rights Guidelines on Freedom of Expression
Online and Offline, para. 16, 18, May 12, 2014.
See UDHR Art. 12; ICCPR Art. 17; CRC, Art. 16; CRPD, Art. 22;
Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families, Art. 14. See also ECHR Art. 8; ACHR Art. 11.
Convention for the Protection of Individuals with regard to Automatic
Processing of Personal Data, CETS No. 108, 1 October 1985; UNHRC,
A/HRC/23/40, Report of the Special Rapporteur on the promotion and protec-
tion of the right to freedom of opinion and expression, Frank La Rue, 17 April
2013, paras. 11, 79; UNHRC; A/HRC/27/37, The right to privacy in the digital
age Report of the Office of the United Nations High Commissioner for
Human Rights, 30 June 2014, para. 14. Council of Europe, Declaration on
Freedom of Communication on the Internet, Principle 7 (2003); Rv.Spencer,
2014 SCC 43 para. 62 (2014); Totalise Plc v. The Motley Fool Ltd. & Anor
EWHC 706 (QB) (19 February 2001); Sheffield WednesdayFootball Club Ltd.
and others v. Hargreaves EWHC 2375 (QB); Oberlandesgericht Hamm,Case
No. I-3 U 196/10 (3 October 2011).
UDHR, Art. 1; ICCPR, Art. 19(1).
Various assessments and tools are out there to assess and examine national
practice and performance in development and use of ICTs. See, for instance
The Cyber Readiness Index (available at
images/CRIndex2.0.pdf), ICT Development Index (available at
net4/ITU-D/idi/2015/), Global Cybersecurity Index (available at
dms_pub/itu-d/opb/str/D-STR-SECU-2015-PDF-E.pdf), Freedom of the Net
index (available at
2015), UN E-Government Survey (available at https://publicadministration., Networked
Readiness Index (available at
technology-report-2015/network-readiness-index/), Index on Digital Life
(available at
comparative assessments (Cyber Maturity in Asia-Pacific Region, available
2015/Cyber-Maturity-2015.pdf and OAS Cybersecurity Report available at
This instrument was co-sponsored by 57 Member States and adopted with-
out a vote.
See, e.g., European Commission (2015) [28].
See, for instance the US view on the implementation of the ICCPR: States
Party to the Covenant should wherever possible refrain from imposing any
restrictions or limitations on the exercise of the rights recognized and protected
by the Covenant, even when such restrictions and limitations are permissible
under the terms of the Covenant. See, U.S. reservations, declarations, and
understandings, International Covenant on Civil and Political Rights, 138
Cong. Rec. S478101, daily ed., April 2, 1992. In contrast, Russia has em-
phasized that the exercise of rights and freedom in information space is con-
tingent of relevant national laws and regulations.See, Draft International Code
of Conduct for Information Security submitted to the United Nations on
September 12, 2011 by China, Russia, Tajikistan and Uzbekistan.
Health Technol.
To take into account information society goals and objec-
tives personal data protection needs to be addressed with the
view to online presence of the government, overall Internet
penetration, services and transactions online and overall soci-
etal attitudes to the freedom of information. Personal data
protection guarantees materialize in conjunction with intellec-
tual property protections in case of databases and websites.
They attach to information system security standards and gen-
eral levels of awareness of basic cyber security risks and
threats. A national personal data protection regime must go
hand in hand with incentives and disincentives to particular
online activities, for instance by criminalizing acts and omis-
sions that result in breaches of privacy and confidentiality; or
providing remedies against excessive online profiling and
targeting by corporate actors. Furthermore, personal data pro-
tection guarantees need to be resolved against societal expec-
tations of and national commitments to effective law enforce-
ment. Finally, personal data protection regimes need to con-
sider and intelligence the requirements of national security
and defence. Military doctrines and national capabilities
targeted at data necessitate personal data protection as part
of national resilience plans, critical systems and services as
well as national defence and military capabilities.
Such a framework is hard to achieve in one normative
instrument. It is therefore essential that personal data protec-
tion is acknowledged and treated as a cross-cutting theme in
national policy-making and legislation. The basic principles of
privacy and personal data protection need to be upheld and
adjusted in respective lex specialis. Accordingly, oversight
and implementation of personal data protection guaran-
tees needs to be treated as a shared responsibility, to
avoid framing and resolving the issue as one of con-
frontation. A solid national normative approach to per-
sonal data protection and privacy in the information age
is a cross-sectorial effort with due consideration of un-
derlying values and expectations.
These observations necessitate a (re) consideration of pri-
vacy guarantees in the national legal and policy frameworks.
Personal data protection has become a dimension rather than a
theme. As the following chapter will show, the issue is not
entirely normative. It is one of implementation. To effectively
close the gap between the expectation of privacy and national
reality, national strategies policies and regulations must recon-
cile the regulatory mantle with the core.
5 Individual participation as a prerequisite
of implementation
At the core of legal guarantees to privacy stands the individ-
ual. Each of us is entitled to individualized exercise of self-
determination, personal identity, tolerance of unique publicity
and solitude demands. Loss of individualism inevitably leads
to demise of privacy. Individual interest and involvement in
personal data protection process is key to preventing the ex-
piration of privacy. What individuals do not demand, corpo-
rations and governments will/shall have no appetite to supply.
From legally granted solitude, privacy is easily relegated to a
chance of not being noticed in the masses of people and of
Several trends merit attention when considering how
to maximize personal participation in data processing.
The popularity of online applications and services, tes-
tifies of fusion of access to unlimited information, free-
dom of expression and the expectancy of privacy.
Services consume data from multiple sources, obfuscat-
ing lines between the controller, purpose and benefit of
such processing. As a result, it becomes difficult to
grasp, let alone adequately consent to, data collecting
practices online.
The advent of social media has offered new ways of ex-
pressing individualism, at the cost of publicity. Some com-
mentators compare Facebook, Twitter and YouTube to coun-
tries, not only because the size but the degree of sense of
The freedom to think is linked to access to
information and the freedom of expression. Individualism on-
line becomes a practice of expressions –‘status,likes,
comments, and shares. Individualism expressed through
social media, creating a distinct social-virtual identity and en-
vironment (re) creates identity and the individual, paradoxi-
cally with an identity and a profile but without privacy.
alter-individualism erodes privacy in that it escapes the soli-
tude as a prerogative of the claim of privacy.
Where individualism is turned or traded into publicity
or made contingent upon ones freedom of expression,
there is an instrumental limit to how far normative pri-
vacy guarantees can be stretched. In contrast, where
individuals have taken steps to seal their identity or
actions from the public, there is little recourse for gov-
ernments and businesses to demand access, absent clear
legal cause of action.
See also Working Party 29; Opinion 15/2011 on the definition of consent,
13 July 2011, available at
See, e.g. VincosBlog; BWorld Map of Social Networks^, January 2016,
available at
On the impact of networks see for example Slaughter, Anne-Marie (2004)
[29]. On the possibility cosmopolitan community Bull, Hedley (1977) [30].
On virtual identities Rosen, Christine (2007) [31]. as well as Holt, Douglas
(2016) [32].
See Brown, Aaron, BPolice say YOU should avoid THIS Facebook feature^,
Express, 13 May 2016, available at
technology/670120/Facebook-Police-Emoji-Reactions-Like-Button. Griffin,
Andrew; BFacebook Reactions: Belgian police warn citizens not to react to
posts on social media^, Independent, 13 May 2016, available at http://www.
Health Technol.
In the latter context, a troublesome trend is ostrasizing
of individuals, treating people as impersonal mass, objects
of marketing or spaces to invade. Group labels such as
criminals,terrorists,combatantsdo not permit ade-
quate consideration of individual circumstances and enti-
tlements that are at the heart of privacy and personal data
protection guarantees. Similarly, data protection can hardly
be adequately solved for consumers,students,bank
account ownersor users’–in every case a group of
individuals is concerned, personal data protection guaran-
tees become disguised and hard to fully observe by mem-
bers of the group.
A useful example here is the implementation of the
legal protections against automated decision-making.
According to Article 15 (a) of the Personal Data
Protection Directive every person has the right not to
be subject to a decision, which produces legal effects
concerning him or significantly affects him and which is
based solely on automated processing of data. In lay-
man practice, getting beyond computer assessmentof
ones creditworthiness, customer priority is becoming
increasingly difficult. Agamben goes as far as to predict
a loss of fundamental status as human, the reduction to
bare lives that can be used or killed, as a result of
further advances in artificial intelligence and automated
decision-making. [33].
The time to consider these issues and developments
is now. On the one hand, privacy breaches are often
self-inflicted, or constitute a result of a personssocial
choices. With all these trends and issues, it is important
to note that the goal of all these actors and actions is
hardly the assault on privacy. For governments and
companies the immediate purpose is more efficient ad-
ministration or a more profitable business. That privacy
is taken hostage by these purposes, highlights the often-
overlooked element in the granting of protections for
personal data the person herself.
At the same time, development and uses of ICTs are not a
natural force. They rest on decisions. Above all, personal data
protection is intended to provide an effective remedy to the
data subject to defend its personal space against governments,
corporate actors and other people. Inadequate consideration of
privacy and data protection issues could lead to cases of state
responsibility. In this context, governments need to consider
due diligence standards when adopting ICTs in societal and
political functions.
6 Conclusion
Building personal data protection guarantees is a step-
by-step process that needs to take into account the so-
cial, economic and political realities of the jurisdiction
at hand. At the minimum, in jurisdictions with no
strong personal data protection culture, privacy concerns
can effectively be addressed in the context of confiden-
tiality as, and when, it supports particular business
models, perhaps insurance, banking, and health care in
the forefront.
The interrelationship of privacy with access to infor-
mation, opportunities of expression, consumerism and
security is hard to break.
The administrative-
industrial complex
is impossible to penetrate without
basic privacy guarantees and understanding of the un-
derlying technological, economic and political realities.
Personal data protection regimes offer a balancing
mechanism in the intertwined public-private relation-
ships. In this regard, any jurisdiction with normative
tools of personal data protection becomes a terrain of
opportunity for the individual.
The test of individual protest against the polygamist
concept of privacy is seminal for the future of the right
to privacy. Without personal participation, data privacy
becomes obsolete and cannot be effectively provided by
government, no matter how liberal. Recent upgrades to
personal data protection acts, especially in Europe, are
expected to increase transparency about data breaches
and broaden the jurisdictional surface of protest.
Reinforcing the rights of individuals is one of the very
few prospective remedies in the world of interconnected
data and power relations. In many cases, the question
becomes about the ability and willingness of individuals
to pursue the already existing (or claimed to exist)
However, privacy cannot be achieved through norms
alone it materializes through technological design and
information architecture. Most importantly, privacy in
the information age materializes through choices.
Compliance with ethical standards
Conflict of interest The author declares no conflict of interest.
Funding There is no funding source for this article.
Ethical approval This article does not contain any data, or other infor-
mation from studies or experimentation, with the involvement of human
or animal subjects.
Informed consent Not applicable.
For a discussion how privacy, freedom of information and expression, na-
tional security and International stability interact, see See Tikk, Eneken, Zaure
Agnes (eds) [3].
Paraphrasing the notion of military and industrial complex President
Eisenhower coined in his farewell address.
Health Technol.
Open Access This article is distributed under the terms of the Creative
Commons Attribution 4.0 International License (http://, which permits unrestricted use,
distribution, and reproduction in any medium, provided you give appro-
priate credit to the original author(s) and the source, provide a link to the
Creative Commons license, and indicate if changes were made.
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