In my previous post I suggested that Technology was viewed in the Directive as pure means, a perfectly controlled instrument. It is worth noting that the document published by the Commission outlining the responses to the Review of the Directive commits itself to this view (see the link on Clare Walker’s post). Actually what it says is that the Directive is neutral as to the technology (which could mean no preferences), but actually means, I think, that the technology is passive and reflective.
But we know, even on the most obvious level, that this neutrality is questionable, given the history of large scale and disastrous IT programmes. I suppose you could say, in return, that in principle the technology can be made to reflect user requirements, it’s just difficult to make it happen. The solutions are provided by the technical expert.
We also know that the new technologies are creating novel situations where, from the point of view of data protection requirements, it is difficult to see what is happening to personal data, and what data controllers and data subjects should do to give effect to the scheme. These situations are good news for ingenious data protection lawyers, as well as ambitious regulators, and are likely to continue, because the technology is continuously evolving. But the assumption is that in principle the rules and novel situations arising from evolved technologies can be brought into alignment.
It is fair to say that the view of the technology as neutral in relation to the Directive might be recuperated by these approaches – although there must be a sense that continual test cases which are never dismissed means the rules are too flexible, and that it is the rules that are neutral. It depends on how much the original position is modified, and in what direction.
In a wider sense, it is right to think of technology as a means to deliver human ends and purposes for the benefit of all. It is an instrument. But the instrument has its own ways too: it is what I would call a “separate incremental entity”. There is the empirical fact of the technology (although even that is becoming subliminal), and there is what the technology does to and with human purposes and ends, the incremental aspect. These two elements are perfectly muddled up in the current panic about security – because it is the incremental aspect which is important, rather than the loss of the kit.
But the picture of the technology –of a separate incremental entity – is something usually left out of accounts of the imbalances which the Directive is meant to adjust in the direction of fairer outcomes. That is because the Technology is seen a neutral entity which merely reflects the social and economic circumstances that exist outside of it, or the respective positions of data controllers and data subjects. But what if the technology isn’t neutral?
After I had written this post events in Egypt have highlighted in an extraordinary way the influence of the new ICT’s on a political situation – and in its way it is a good example of the incremental power of the new technologies, perhaps taking a protest movement towards revolution?