This branch of Datonomy is still struggling with the Rand Review of the European Data Protection Directive. However, we can note immediately the position it takes on Technology. One of the strengths of the Directive, the Review claims, is that it is neutral in relation to Technology. The Information Commissioner, in his commentary on the Review, while agreeing that this is strength, also says that a weakness of the Directive is that it is outdated in relation to contemporary technology. Can something which is neutral become outdated? Should we be looking for state of the art neutrality in a new Directive?
Of course, it has always been claimed that the Directive is neutral in relation to Technology. If you look at the key Article 2 of the Directive, though, it doesn’t seem to have much to do with technology at all, which I suppose is a form of neutrality. The Article identifies any operation performed on personal data “whether or not by automatic means”.
Later on (3.2), the Review claims that it is a main strength that there is no reference to specific technologies in the Directive. Then there is this: “Concept of personal data broad enough to be technologically neutral”. That is an unexpected pleasure. It is so difficult to find anyone who thinks well of a broad definition of personal data. But then, how would a narrower definition of personal data be any less neutral viz a viz the technology? Then at 3.2.4 “To a large extent, the Directive does not concern itself with the way in which its provisions should be applied in the context of new technologies i.e. RFID’s. The definition of personal data has been left deliberately abstract so that it can be applied in a number of technological contexts”.
Deliberately left abstract? Please! Brussels and abstraction is like mussels and chips. RFID’s in 1995? Let’s remember that the Directive was negotiated in the first part of the 1990’s, when Amstrad’s were cool. Well, you know what I mean. It was negotiated by people who probably thought of IT as merely automating the activities of clerks: the computer as homunculus. Regulatory terms that applied to the actions of clerks, and to the consequences of these actions, could also be applied to the homunculus.
The Directive didn’t really have a concept of the technology, but that is not the same thing as neutrality, as I’ve already said. And neutrality should not be recommended as a strength now. What we have now is an opportunity to assess the Technology for the first time.