What Binds us Together as a Community?

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Opening remarks at the 33rd International Conference of Data Protection and Privacy Commissioners

November 3, 2011
Mexico City, Mexico

Address by Jennifer Stoddart
Privacy Commissioner of Canada

(Check against delivery)


Introduction

Marty Abrams, the “captain” for this closing plenary, told me my role was to be a “provocateur”. This is a role I am happy to fill.

Let me begin, not by talking about what binds us together as a community, but about what has prevented us from becoming a stronger, more effective community and offer some thoughts about a way forward. Two basic and divergent realities influence my remarks: the first is the structuring effect of technology; the second is the de facto existence of legal pluralism.

Data regulators need to be more of a community. We need more cohesion. We recognize the common problems, but we have taken different approaches.

We continue to struggle – as individual organizations and collective actors – with the global challenges, threats and upheavals posed to privacy today; this, despite decades of work and untold countless hours of talk and analysis about the problem of protecting personal information. It is far from clear to me that we have been as successful as we could have been.

We have not yet come to grips with the impact of new technologies and the degree to which they have caused structural changes in our societies.

In one sense this is nothing new. Dating back at least to Warren and Brandeis and the invention of photography, we have been wrestling with the impact of technologies on our private lives.

In 1950, one of the scholars who influenced Marshall McLuhan, author of the phrases “global village” and “the medium is the message,” commented that, “Constant changes in technology, particularly as they effect communications, a crucial factor in determining cultural values, increase the difficulties of recognizing balance, let alone achieving it.”

The first national privacy laws, along with the OECD Guidelines and the Council of Europe’s Convention, were prompted by concerns about the impact of the first generation of computers.

Now, of course, we are dealing with information and communications technologies that were unimaginable when our first laws were passed.

These technologies are inherently disruptive. They are redefining the way we communicate with one another; they are reinventing politics; they are challenging our social norms; and, arguably, they are even contributing to the overthrow of governments. Challenging as it is, we have to keep pace with technology and the way it affects and structures our lives and economies.

We need to work more closely together to understand these technologies, to come to grips with how they are reshaping our society and to develop common responses and strategies.

Privacy is viewed differently in Europe, in Asia and in the US, to mention only three regions. Free expression and the freedom to observe are critically important in the US and these values clash with the European interpretation of privacy as a fundamental human right. And Asian values may be different again.

But it’s not just how we view privacy; it’s also how we conceive of and understand the role of technology and individuals. So this tension exists not just along one axis, but several. This clash of cultures affects all of us. It divides, rather than unites us. Too often, we speak past one another. To be fair, we are starting to bridge this divide but we need to get past these differences. We won’t eliminate them; so how can we live with them?

Our national laws are important, but they are not enough, particularly when the landscape is shifting beneath our feet and our laws are lagging behind. One suggestion is to embrace the concept of “legal pluralism” which challenges the notions that state-made law is the only or the most effective way to regulate society.

As one scholar of legal pluralism has argued, citizens do “create and negotiate their own normative standards to shape and symbolize social behaviour …. Even the simplest legal regimes are constituted by a plurality of decision-making institutions, distributive criteria and cultural traditions.”Footnote 1

The concept of legal pluralism would seem to be ideally suited to protecting privacy because it recognizes that the nation state does not have a monopoly over generating “law”. It attempts to provide a way to understand our post-modern world. Many of us are still more comfortable with modern world values such as rationalism, universalism, certainty and order. But the post-modernism world of today seems to be about empiricism, particularism, indeterminacy and disorder.Footnote 2 This is the world we are now facing.

Using the lens of legal pluralism, we can recognize the critical role that culture plays in defining legal norms and acknowledge the possibility that legal mechanisms can also be found in other social settings, such as families, peer groups, the workplace and even the laboratory. We should also acknowledge the renaissance of “lex mercatoria” – merchant law – created by powerful global business.

So we may want to look beyond our national privacy and data protection laws and recognize that privacy is also shaped and defined by social norms, arbitration decisions, codes of conduct, international standard-setting organizations and consumer and citizen behavior.

We need to be more effective as a community. Being effective involves making choices – we have to be strategic.

This also requires that we work together. We need mechanisms and processes to share information and to coordinate our enforcement work.

We adopted a resolution at our Closed Session on Tuesday about the need to improve our existing cooperative frameworks. We need to have simple and secure but effective ways to communicate with one another – to let each other know what we are doing in terms of addressing common issues. We need to share our expertise and maximize the use of our scarce resources.

We place a great deal of emphasis on our Independence but we should not confuse independence with isolation. We need to draw on more allies.

The privacy community has grown enormously and we should tap into this broader community of civil society, academics, privacy professionals and think tanks. We need to leverage state power to help us deal with some issues and actors. We can’t deal with these problems alone. We need to develop better working relationships with these actors and with each other.

Conclusion

The old ways will no longer work. We require a new generation of policy-makers, legislators, regulators and responsible corporate actors to come forth, in every country, with new ideas, laws and models. Mexico City is an appropriate venue for such a discussion because Mexico is one of the several countries in Latin American, Africa and Asia introducing and implementing a new generation of privacy laws. We must all throw our weight and effort behind innovative ideas and novel approaches.

We should not ignore the lessons of the past, but we cannot be shackled to our history either. Global forces have changed the lives and ideals of citizens in all our countries in dramatic, unforeseeable ways in the past 30 years. Our shared understanding and defence of privacy must change too.

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