The Impact of Digital Technology on the Right to Privacy

The Impact of Digital Technology on the Right to Privacy
Introduction
One of the major contentious issues related to digital technology is privacy. It is important to understand the implications of digital technology on the privacy rights of individuals online. With increased connectivity to the internet, the amount of data collected by digital technologies continues to rise and this raises pertinent privacy issues. While the collection of data by digital companies plays a role in improving user experience, there are no comprehensive guidelines or regulations regarding data usage. Apart from improving user experience, digital companies also utilize data collected for marketing purposes as they seek to be profitable in the competitive digital space. Given the usefulness of personal data collected by companies online, there is a risk that it can be sold and even stolen by malicious attackers. Therefore, the advancement of digital technologies seems to have serious implications for privacy rights, and legislations appear not to be catching up with them. It is thus important to examine how digital technologies impact the privacy rights of digital consumers to develop potential interventions to promote a more coherent digital environment. While the advancement of digital technology has opened many opportunities, it has threatened the right to privacy by outpacing privacy laws, increasing the risk of misuse of personal information, and exposing individuals to surveillance.
Literature Review
Privacy Legislation has been outpaced by Digital Technology
The digital world is growing at an exponential rate and with it the level of privacy that users have to give up to access products and services. As the adoption of technological devices increases and more people become connected, the challenge of digital privacy continues. Unfortunately, as technology keeps growing exponentially, legislation meant to oversee the digital platforms are still lagging. As a result, the gap between digital technologies and legislation keeps increasing. This exposes consumers to privacy risks that come with the use of such technologies. In essence, the advancement of digital technology has outpaced privacy legislation as evidenced by lack of comprehensive laws by the U.S. Congress, the inapplicability of the use of reasonable expectation of privacy test, and the insufficiency of the provisions of the European Union’s General Data Protection Regulation (GDPR) to protect privacy rights.
Lack of Comprehensive Laws by the U.S. Congress. Unger (2020) examines how the U.S. Congress has failed to enact comprehensive legislation to protect personal information despite there being numerous data security and privacy failures. According to the author, the last few years have seen federal regulators scrutinize business organizations for deceptive or poor privacy practices, one such company being Facebook. In 2019, the Federal Trade Commission (FTC) fined the giant technology company Facebook $5 billion for its deceptive practices in regards to privacy controls. As pointed out by Unger (2020), Facebook misrepresented to consumers the extent to which they had control of their privacy settings, the procedure they could follow when implementing privacy controls, and the degree to which the company shares personal information with third-party entities. The year 2019 saw more than 5,100 data breaches that were disclosed publicly, which led to the exposure of almost 8 billion records (Unger, 2020). Despite several companies being the subject of data breaches, the U.S. Congress has failed to enact relevant laws that can protect consumers whose information is at risk in the hands of digital companies.
As noted by Unger (2020), given that some inventions and innovations can subject an individual to distress and mental pain far worse than bodily harm, privacy protections must accompany technological development. The absence of comprehensive privacy legislation at the federal level has pushed states in the U.S. to enact laws to protect individuals. California and Illinois are examples of such states that have passed data protection for individuals. Unger (2020) notes that there are some forms of individual data protections in three states in the country while twenty other states are either considering similar legislation or have set up tasks forces on the issue.
A major recommendation made by Unger (2020) is that as states and Congress seek to enact privacy protections, they should include a private right of action (PROA), which will give individuals the right to litigate in a personal capacity when trying to enforce a legal claim. A key benefit that comes with PROA is that it would prompt digital businesses to proactively protect the privacy of individuals. The current lack of comprehensive legislation means that consumers will continue being at risk.
The reasonable expectation of privacy test. The lack of comprehensive laws by the Congress is compounded by the inapplicability of the reasonable expectation of privacy test. The test defines the scope within which the provisions under the Fourth Amendment are applicable. In Katz v. United States, the Supreme Court extended the provisions to all places or areas where one demonstrates a reasonable expectation of privacy (Buresh, 2021). However, as noted by Buresh (2021), when it comes to evaluating the implications of collecting, storing, and using biometric information, the reasonable expectation of privacy test may not be applicable because third parties can discern it. When a person releases information voluntarily to a third party, Buresh (2021) points out that they do not have a reasonable expectation of privacy. It is also deducible that when one reveals information involuntarily, it means they may have a reasonable expectation of privacy.
As noted by Buresh (2021), it is not clear who owns data provided to organizations by individuals. This shows how legislation is not catching up with the collection of data online. With the reasonable expectation of privacy test not being applicable for personal information collected online, consumers are left more vulnerable given their data is in the hands of corporations. The inapplicability of the reasonable expectation privacy test underpins the increasing gap between the advancement of technology and legislation.
GDPR’s provisions. Unger (2020) and Buresh (2021) focus on legislations in the U.S. but even in Europe, the legislation is not catching up with technology. In his study, Krishnamurthy (2020) finds the provisions of GDPR unnecessary and insufficient to protect individuals’ right to privacy. The right to privacy that the author refers to in his study is the one protected by Article 17 of the International Covenant on Civil and Political Rights (ICCPR). Under the ICCPR, the collection and storage of personal information by any entity must be protected by law. In addition, states are required to take necessary measures to ensure that private information does not reach unauthorized persons. This is the international law upon which Krishnamurthy (2020) bases his analysis of the GDPR’s provisions. Data-intensive are left out of the scope of GDPR’s provisions. In article 2 (2) of the GDPR, data processing activities outside the scope of EU law are not taken into account. The article also does not apply in the context of criminal prosecutions and investigations. This is despite the fact that there have been misuses of personal data in the context of national security. In this regard, for EU countries to conform to the privacy provisions of the ICCPR, they have to go beyond the provisions of GDPR. It is important to recognize GDPR provides the sturdiest protections of privacy in the world today and given that it is lacking itself, it underpins the widening gap between legislation and technology advancement.
When it comes to protecting personal information from government access, Krishnamurthy (2020) notes that U.S. legislation is likely the strongest in the world. Despite this, U.S. laws have failed to adequately protect privacy from attacks and interferences from natural persons. The author notes that the default position in the U.S. is that private information can be gathered, used, and disclosed unless it is specifically against the law do so. This brings to question the country’s approach to the privacy of individuals. It is clear that both the GDPR and American approaches to privacy do not meet the standard set by ICCPR.
The works by Unger (2020), Buresh (2021), and Krishnamurthy (2020) all show how privacy legislation is lagging behind as digital technologies advance. Unger (2020) demonstrates that despite several privacy failures in the past, the U.S. Congress is yet to enact comprehensive legislation to protect consumers and proposes the inclusion of PROA when relevant legislation is made. Buresh (2021) demonstrates how the reasonable expectation of privacy test may not be applicable with digital technologies. Krishnamurthy (2020) shows that even the strongest legislations present today are not sufficient to protect the privacy of individuals. It is clear from the three authors that the right to privacy is under significant threat as technology advances.
Increased Risk of Misuse of Personal Information
The advancement in digital technology has to a great extent increased the risk of misuse of personal information, consequently threatening consumers’ privacy. With the personal information of consumers being valuable to different parties including businesses and malicious attackers, there is a heightened risk that data collected by applications can be misused. The risk of misuse of personal information is evidenced by technologies such as Big Data and IoT, the vulnerability of organizations, consumers falsifying information, and the fact that sensitive personal information can be accessed cheaply.
New technologies such as Big Data and IoT collect a lot of data. As businesses strive to solve problems in the market, they have come up with new technologies, some of which further threaten consumers’ right to privacy. According to the study by Becerril (2018), the current digital economy is essentially based on information, which has monetary value. The author notes that technologies such as IoT and Big Data that have emerged mean that a lot of information is collected with speed and commercialized. This has undermined consumers’ confidence in the digital market. Interestingly, personal information has been branded names such as “the new oil,” which underpins its immense value to different stakeholders in the digital economy (Becerril, 2018). The author notes that there is a high concern about the misuse of personal data, which further raises major questions about privacy. The author recommends that, for consumers to trust companies, it is significantly important that they understand the value of their information.
Companies are vulnerable to cyberattacks. The rise of new technologies as elucidated by Berecerril (2020) increase collection of data and consequently puts companies at risk. With digital companies collecting vast amounts of personal information from consumers, they are at an increased risk of being victims of cyberattacks, which raises the threat of misuse of personal information. As revealed by Marcus (2018), no o...