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1 Int'l Data Priv. L. 1 (2011)

handle is hein.journals/intldatpc1 and id is 1 raw text is: International Data Privacy Law, 2011, Vol. 1, No. 1 Christopher Kuner*, Fred H. Cate**, Christopher Millard**, and Dan Jerker B. Svantesson*** It is more than a decade since Scott McNealy, then CEO of Sun Microsystems, (in)famously declared: 'You have zero privacy anyway. Get over it! His statement caused quite a stir, and has since been quoted many times in various forms by both privacy sceptics and champions. It turns out that rumours of the death of privacy were greatly exaggerated. Indeed, we are convinced that data protection and privacy law have never been more relevant or important than they are today. The funda- mental principles of international privacy law set out three decades ago in instruments such as the OECD Guidelines and the Council of Europe Convention 108 have, on the whole, stood the test of time. Concepts such as fairness, transparency, lawful justification for processing, reasonable access to information, and appropriate security arrangements not only remain fundamental to regulation in this field, but are also are of growing interest and concern to individuals, businesses, and governments (see below). However, it is fair to say that the practical appli- cation of these basic concepts has become increasingly strained. The following four key sources of stress also seem to be the main drivers behind recent calls for greater protection of privacy: * The rapid, and relentless, development of technol- ogies has had an extraordinary impact on data pro- tection and privacy rights. While George Orwell was prescient in predicting some of the ways in which states would use surveillance technologies, even he could not anticipate the pervasive impacts of data processing and communications activities in both the public and private sectors. Today there is massive, and rapidly expanding, connectivity, with over a quarter of the world's population online and about half already using mobile phones. With Face- book alone boasting more than half a billion users, social networking services appear to have come of age. Meanwhile, concepts such as 'ubiquitous com- * Editor-in-Chief ** Editor *** Managing Editor 1 Wired Magazine, 26 January 1999. puting' no longer seem fanciful, and the 'Internet of Things' is raising concerns about the practical conse- quences of massively distributed sensor networks and the applicability of privacy principles to data communications between devices as well as people. The proliferation of digital data and systems is also challenging the capacity of data protection and privacy regulation. * A second key catalyst for revisiting the fundamentals of international privacy law is the globalization of the economy that, in one way or another, depends on cross-border transfers of personal data. Inter- national e-commerce is now well established and fre- quently gives rise to complex compliance issues for both providers and regulators of online transactions. More recently, outsourcing has developed from its early forms that were characterized by highly custo- mized and heavily negotiated arrangements using stable and identifiable infrastructures, into a range of services based on fungible resources that are avail- able on demand. Underlying this latter transition has been the emergence of cloud computing infra- structure, platforms, and services. * Third, governments have demonstrated an appar- ently insatiable appetite for collecting data about individuals. Governments today increasingly rely on personal data to run social service programmes, administer tax programmes and collect revenue, support hundreds of regulatory regimes, maintain vital records about major lifecycle events, operate facilities, and enforce laws. The role of personal information collected as part of these programmes is striking, and reflects what Professor Paul Schwartz has described as the 'data processing model of admin- istrative control'. Professor Schwartz writes: 'Compared to its historic role, the state today depends upon the availability of vast quantities of information, and much of the data it now collects relates to identifiable individuals'.2 Nowhere is this 2 Paul Schwartz, 'Data Processing and Government Administration: The Failure of the American Legal Response to the Computer' (1992) 43 Hastings Law Journal 1321, 1325, 1332 (emphasis in original). C The Author 2010. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oxfordjournals.org 1

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