Privacy Law and Policy Reporter
International Working Group on Data Protection in Telecommunications
The text of the Report follows. The Report is dated 21 May 1996 (revised on the basis of the discussions at the 19th Meeting of the Group in Budapest 15 and 16 April 1996. (Editor)
Today, the Internet is the world's largest international computer network. There are `slip roads' to this `information superhighway' in more than 140 countries. The Internet consists of more than four million Internet sites (hosts) -- more than 40 million users from all over the world can use at least one of the different Internet services and have the facilities to communicate with each other via electronic mail. Users have access to an immense pool of information stored at different locations all over the world. The Internet can be regarded as the first level of the emerging Global Information Infrastructure (GII). The World Wide Web as the most modern Internet user interface is a basis for new interactive multimedia services.
The participants in the Internet have different tasks, interests and opportunities:
The fast growth of the Internet and its increasing use for commercial and private purposes give rise to serious privacy problems:
The participants in the Internet share an interest in the integrity and confidentiality of the information transmitted. Users are interested in reliable services and expect their privacy to be protected. In some cases they may be interested in using services without being identified. Users do not normally realise they are entering a global marketplace while surfing on the Net and that every single movement may be monitored.
On the other hand many providers are interested in the identification and authentication of users -- they want personal data for charging, but they could also use these data for other purposes. The more the Internet is used for commercial purposes, the more interesting it will be for service providers and other bodies to get as much transaction-generated information about the customer's behaviour on the Net as possible, thus increasing the risk to the customer's privacy. Increasingly, companies start to offer free access to the Net as a way of assuring that customers read their advertisements which become a major financing method for the whole Internet. Therefore they want to follow to want extent, by whom and how often their advertisements are being read.
With regard to certain risks mentioned the functions of the bodies which on an international, regional and national level manage the Net are important in particular when they develop the protocols and standards for the Internet, fix rules for the identification of servers connected and eventually for the identification of users.
The main topics can be summed up as follows:
There are also a number of international legal regulations and conventions that apply inter alia to the Internet:
The EU Directive as the first supra-national legal instrument does contain an important new definition of `controller' which is relevant in the Internet context. Article 2 lit (c) defines `controller' as the natural and legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data. Applying this definition to the use of the Internet for purposes of electronic mail the sender of an electronic message has to be considered to be the controller of this message when sending a file of personal data for he determines the purposes and means of the processing and transmission of those personal data. On the other hand the provider of a mailbox service himself determines the purposes and means of the processing of the personal data related to the operation of the mailbox service and therefore he as `controller' has at least a joint responsibility to follow the applicable rules of data protection.
Although not legally binding and adopted on a national rather than an international level the Principles for providing and using personal information `Privacy and the National Information Infrastructure' adopted by the Privacy Working Group of the Information Policy Committee within the US Information Infrastructure Task Force (IITF) on 6 June 1995 should be mentioned in this context for they are bound to influence the international data flows. They have been discussed intensively and fruitfully with the International Working Group on Data Protection in Telecommunications at the Joint Meeting in Washington DC on 28 April 1995.
In practice some important and effective rules are being imposed by the Net community themselves by way of self-regulation (for example, `Netiquette'). Such methods are not to be underestimated as to the role they play and might play in future in protecting the individual user's privacy. At least they contribute to creating the necessary awareness among users that confidentiality on the Net as a basic standard is non-existent (`never send or keep anything in your mailbox that you would mind seeing on the evening news'). The EU Data Protection Directive in turn calls for codes of conduct (art 27) which should be encouraged by member states and the Commission.
On the one hand the right of every individual to use the information superhighway without being observed and identified should be guaranteed. On the other hand there have to be limits (crash-barriers) with regard to the use of personal data (for example, of third persons) on the highway.
There is a strong case to prohibit the use of the Internet for the publication of search warrants by the police (the US Federal Bureau of Investigations has published a list of wanted suspects on the Net for some time). The described deficiencies in the authentication procedure and the easy manipulation of pictures in cyberspace seem to prevent the use of the Net for this purpose.
A solution to this basic dilemma will have to be found on the following levels:
(a) Service providers should inform each potential user of the Net unequivocally about the risks to his privacy. He will then have to balance these risks against the expected benefits. The Internet is a `beautiful wilderness with lions and snakes' (Waltraut Kotschy) but there is little awareness among users what this means.
(b) As `elements of network infrastructure as well as participants each have physical locations, states have the ability to impose and enforce a certain degree of liability on networks and their participants' (Joel Reidenberg). In many instances the decision to enter the Internet and how to use it is subject to legal conditions under national data protection law. Personal data may only be collected in a transparent way. Patients' data and other sensitive personal data should only be communicated via the Internet or be stored on computers linked to the Net if they are encrypted.
(c) Several national governments are calling for international agreements on the Global Information Infrastructure. The French Minister for Information Technology has argued in favour of an international treaty similar to the International Convention on the Law of the Sea; the German Minister for Research and Technology has called for an initiative in the framework of the G-7 group. These initiatives are to be supported. An international cooperation, even an international convention governing data protection in the context of transborder networks and services including an oversight mechanism is essential.
(d) National and international law should state unequivocally that the process of communicating (for example, via electronic mail) is also protected by the secrecy of telecommunications and correspondence.
(e) Furthermore it is necessary to develop technical means to improve the user's privacy on the Net. It is mandatory to develop design principles for information and communications technology and multimedia hard and software which will enable the individual user to control and give him feedback with regard to his personal data. In general, users should have the opportunity to access the Internet without having to reveal their identity where personal data are not needed to provide a certain service. Concepts for such measures have already been developed and published. Examples are the `Identity Protector' concept included in `Privacy enhancing technologies: The path to anonymity' by the Dutch Registratiekamer and The Information and Privacy Commissioner of Ontario, Canada (presented at the 17th International Conference on Data Protection in Copenhagen (1995) and the `User Agent concept' as reported on at the joint Washington meeting of the Working Group with the Privacy Working Group of the IITF (April 1995).
(f) Technical means should also be used for the purpose of protecting confidentiality.
The use of secure encryption methods must become and remain a legitimate option for any user of the Internet.
The Working Group supports new developments of the Internet Protocol (for example, IP v 6) which offer means to improve confidentiality by encryption, classification of messages and better authentication procedures. The software manufacturers should implement the new Internet Protocol security standard in their products and providers should support the use of these products as quickly as possible.
(g) The Working Group would endorse a study of the feasibility to set up a new procedure of certification issuing `quality stamps' for providers and products as to their privacy-friendliness. This could lead to an improved transparency for users of the Information Superhighway.
(h) Finally it will be decisive to find out how self-regulation by way of an expanded `Netiquette' and privacy-friendly technology might improve the implementation of national and international regulations on privacy protection. It will not suffice to rely on any one of these courses of action: they will have to be combined effectively to arrive at a Global Information Infrastructure that respects the human rights to privacy and to unobserved communications.
The International Working Group on Data Protection in Telecommunications will monitor the developments in this field closely, take into account comments from the Net Community and develop further more detailed proposals.