The ecosystem concept: a holistic approach to privacy protection

ABSTRACT

Proportionality remains a vague concept, in part due to the inherent difficulty of balancing two fundamentally important, but potentially conflicting values, particularly when no recognised method exists to definitively determine where the balance should lie. In the current global climate, privacy has increasingly found itself balanced against the necessity of a wide range of intrusive technological measures judged essential to the state’s fight against terrorism. The range of measures involved can make assessing proportionality complicated, as relying on the proportionality test which isolates and examines a particular legal measure independently, might not adequately identify the total risk presented to an individual’s privacy. In this article, it is proposed that one way of addressing this issue is through turning to the biological concept of the ecosystem for guidance. This concept recognises the existence of a closely interconnected system of actors, engaged in the exchange of information and resources. In particular, it places great importance on the interconnections between the various actors, and the effects one can have on another. This article therefore considers whether this approach can be utilised in order to conduct a more holistic proportionality assessment, and whether it provides a viable method of analysis within law.

KEYWORDS:

• Privacy
• proportionality
• ecosystems

Correction Statement

This article has been republished with minor changes. These changes do not impact the academic content of the article.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 For some, this might initially appear too Western-centric a statement. However, research supports the suggestion that most societies, both past, present, and even animal, value some form of privacy. Its form and importance varies across centuries, cultures and value structures, but its existence can be observed in almost all of them. For more detailed research into this area, Chapter One of Westin’s Privacy and Freedom proves informative.

2 While not explicitly mentioned within the ECHR, the case law of the ECtHR has made it abundantly clear that the proportionality principle has a central importance to the protection of European human rights. See, e.g. Sunday Times v United Kingdom (1979) and Tsakyrakis (2009, 475).

3 Within the European Union, the principle of proportionality is explicitly established within Article 52 of the EU Charter.

4 See, e.g. Bundesverfassungsgericht, Judgement of the First Senate of 2 March 2010–1 BvR 256/08, para 218 https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2010/03/rs20100302_1bvr025608en.html (last accessed 13/01/2020).

5 While Tansley is commonly cited as establishing the ecosystem concept, credit for the actual term ‘ecosystem’ belongs to Arthur R. Clapham, who proposed the term after Tansley asked for suggestions for a term to describe the physical and biological components of an environment when considered together as part of a unit (Willis 1994; Ayres 2012).

6 The concept of ‘systems’ was commonly understood as describing the act of isolating a particular section of the universe for observation, and then watching to see how it changes after having been exposed to a variety of conditions. See Pickett and Grove (2009).

7 See, for example, Knight (2019) which highlights how Apple’s failure to program gender into the algorithm which determined credit limits for their Apple Card resulted in discriminatory treatment. Other examples include Google’s search algorithm spreading false information (Solon and Levin 2016) and algorithms creating racial discrimination in medical treatment (Johnson 2019). The effects that incorrect algorithms can have on an individual are wide ranging, and this is likely to only widen as they come to be relied upon more in the future. Particularly concerning is the fact that often it is not possible to identify why an algorithm worked in the manner in which it did.

Additional information

Funding

The author is an Early Stage Researcher within the ESSENTIAL (‘Evolving Security SciencE through Networked Technologies, Information policy And Law’) Project, the work of which is supported by the European Union’s Horizon 2020 Research and Innovation Programme under the Marie Skłodowska-Curie Innovative Training Network (MSCA-ITN) Grant Agreement [Grant Number 722482]. The ideas herein reflect only the author’s view.