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PRE-MODERN INSIGHTS FOR POST-MODERN PRIVACY: JEWISH LAW LESSONS FOR THE BIG DATA AGE
- Kenneth A. Bamberger, Ariel Evan Mayse
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- Journal:
- Journal of Law and Religion / Volume 36 / Issue 3 / December 2021
- Published online by Cambridge University Press:
- 19 January 2022, pp. 495-532
- Print publication:
- December 2021
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- Article
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This article makes the counterintuitive argument that the millennia-old approach of Jewish law to regulating surveillance, protecting communications, and governing collection and use of information offers important frameworks for protecting privacy in an age of big data and pervasive surveillance. The modern approach to privacy has not succeeded. Notions of individual “rights to be let alone” and “informational self-determination” offer little defense against rampant data collection and aggregation. The substantive promise of a “fundamental human right” of privacy has largely been reduced to illusory procedural safeguards of “notice” and “consent”—manipulable protections by which individuals “agree” to privacy terms with little understanding of the bargain and little power to opt out. Judaism, on the other hand, views privacy as a societal obligation and employs categorical behavioral and architectural mandates that bind all of society's members. It limits waiver of these rules and rejects both technological capacity and the related notion of “expectations” as determinants of privacy's content. It assumes the absence of anonymity and does not depend on the confidentiality of information or behavior, whether knowledge is later used or shared, or whether the privacy subject can show concrete personal harm. When certain types of sensitive information are publicly known or cannot help but be visible, Jewish law still provides rules against their use. Jewish law offers a language that can guide policy debates. It suggests a move from individual control over information as the mechanism for shaping privacy's meaning and enforcement, to a regime of substantive obligations—personal and organizational—to protect privacy. It recognizes the interconnected nature of human interests and comprehends the totality of the harm that pervasive surveillance wreaks on individuals and social relations. It offers a conceptual basis for extending traditional privacy protections to online spaces and new data uses. And it provides a language of dignity that recognizes unequal bargaining power, rejects the aggregation and use of information to create confining personal narratives and judgments, and demands equal protection for all humans.
Privacy Law – on the Books and on the Ground
- Edited by Aviva de Groot, Bart van der Sloot
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- Book:
- Handbook of Privacy Studies
- Published by:
- Amsterdam University Press
- Published online:
- 20 February 2021
- Print publication:
- 16 October 2018, pp 349-354
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Summary
Privacy law is at a crossroads. In light of the digital explosion, policymakers in Europe and North America are engaged in a wholesale process of revisiting the rules governing the treatment by the private sector of personal information.
For too long, such efforts have lacked critical information necessary for reform. Scholarship and advocacy around privacy regulation has focused almost entirely on law ‘on the books’—legal texts enacted by legislatures or promulgated by agencies. By contrast, the debate has surprisingly ignored privacy ‘on the ground’—the ways in which those who collect and control data in different countries have (or have not) operationalized privacy protection in the light of divergent formal laws, decisions made by local administrative agencies, and other jurisdiction-specific social, cultural, and legal forces.
For the two decades following a 1994 study that examined the practices of seven US companies, no sustained inquiry was conducted into how corporations actually manage privacy in the shadow of formal legal mandates. No such work was ever done in Europe. And no one has ever engaged in a comparative inquiry of privacy practices across jurisdictions. Indeed, despite wide international variation in approach, even the last detailed comparative account of different countries’ enforcement practices occurred over two decades ago. Thus, policy reform efforts have often progressed largely without a real understanding of the ways in which previous regulatory attempts have actually promoted, or thwarted, privacy's protection.
A purely ‘on the books’ approach fails to recognize important attributes of the privacy landscape.
In the United States, despite a static statutory landscape characterized by a patchwork of privacy statutes, the absence of a dedicated data protection agency and a failure to provide across-the-board procedures empowering individuals to control the use and dissemination of their personal information, corporate privacy management has undergone a profound transformation. Thousands of companies have created Chief Privacy Officer positions, a development often accompanied by prominent publicity campaigns. A professional association of privacy professionals boasts over 38,000 members and offers information-privacy training and certification. A robust privacy law practice has arisen to service the growing group of professionals and assist them in assessing and managing privacy. Leading firms conduct privacy audits across multiple sectors. And privacy seal and certification programs have developed.