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Legal Foundations of Anonymity

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Anonymization

Part of the book series: SpringerBriefs in Cybersecurity ((BRIEFSCYBER))

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Abstract

Even though the individuals’ motivations of operating anonymously on the Internet are manifold, their highest common denominator is the protection of (the own) privacy. Although everyone takes privacy in normal life for granted, trying to get the same level of privacy and anonymity on the Internet are as important as it is difficult to achieve the objective (Martin, 2006, http://www.securityfocus.com/columnists/386). In so doing, the netizens’ privacy in the online world needs to be defended against both the States (for example, under security interests) as well as against private actors, in terms of economic or criminal interests (Benedek, 2008, Internet governance and the information society: global perspectives and european dimensions, p. 40. Eleven International Publishing).

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Notes

  1. 1.

    Privacy as a human right is enshrined in many international legal instruments, for example in Article 12 of the Universal Declaration of Human Rights (UDHR) (United Nations 1948), in Article 17 of the International Covenant on Civil and Political Rights (ICCPR) (United Nations 1966) as well as in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) (Council of Europe 1950). Some key aspects of these international legal instruments are to be described subsequently.

  2. 2.

    See Chap. 4.

  3. 3.

    This list is not intended to be exhaustive.

  4. 4.

    Concerning the area of tension between the Articles 8 and 10 ECHR see in general Weber and Sommerhalder 2007.

  5. 5.

    See European Court of Human Rights (ECHR): Klass and others vs. Germany. judgment of 6 September 1978. Series A No. 28, para 41.

  6. 6.

    According to a 2011 Survey of the European Commission 94% of the Europeans aged 15–24 are using the Internet, see European Commission 2011b, p. 4.

  7. 7.

    See ECHR: Copland vs. The United Kingdom, judgment of 3 April 2007, No. 62617/00, para 42.

  8. 8.

    Online surveillances enable investigators to look at all data stored on the suspect’s computer (correspondence by email, pictures, documents) unknown to him/her and therewith affects the suspect’s legal position to a great extent since the obtained information’s content can be enormous. As in the case of eavesdropping a suspect’s Internet telephony, online surveillances are accomplished with the aid of (later explained) Trojan horse software and require an explicit warrant.

  9. 9.

    As to that, the European Court of Human Rights emphasizes the necessity of an effective control against abuse; Pätzold 2012, Article 8 para 126.

  10. 10.

    In this sense Volokh 2000, p. 1049; on the corresponding inherent conflict also Grewlich 1999, pp. 270, 272.

  11. 11.

    For more details Volokh 2000, pp. 1057 ss, 1073 ss.

  12. 12.

    This major concern, expressed by Volokh throughout his extensive study, requires careful attention (particularly Volokh 2000, pp. 1076/77, 1122/23).

  13. 13.

    Summary of the treaty: http://conventions.coe.int/Treaty/en/Summaries/Html/108.htm.

  14. 14.

    As in Article 16 of the Treaty of the European Union stating that “everybody has the right to the protection of personal data concerning them”; http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:115:0047:0199:EN:PDF.

  15. 15.

    With a very few exceptions is was not until the second half of the 20th century that governments in Europe started establishing data protection laws encompassing also the issue of data retention. In 1968, at a time when the world could not yet anticipate the technological progress and its effects on data retention, the Council of Europe released a Recommendation concerning human rights and modern scientific and technological developments. Already at that time this Recommendation recognized the potential risks for individual rights. Later, in 1981, the Council of Europe released a Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (No. 108). Since then, the Committee of Ministers of the Council of Europe released several Recommendations entailing additional provisions which refine the notion of data retention.

  16. 16.

    According to a recently published press release of the European Commission, the “goals were to protect individuals’ data in all policy areas, including law enforcement, while reducing red tape for business and guaranteeing the free circulation of data within the EU” (European Commission 2012a).

  17. 17.

    Extensively on the subject Sect. 3.2.2.3.

  18. 18.

    For a comprehensive approach on personal data protection in the EU see European Commission 2010, p. 8.

  19. 19.

    In the last quarter of 2011, the European Commission maintained intensive dialogues with Europe’s national data protection authorities and with the European Data Protection Supervisor to investigate options for more consistent application of EU data protection rules across all EU Member States, see European Commission 2012b, p. 3.

  20. 20.

    In December 2010, the Working Group on Data Retention—a citizens’ movement—brought an action with 35.000 complainants before the German Federal Constitutional Court demanding amongst other things additional guarantees for the freedom of electronic communication, limitations and cutbacks of existing surveillance powers and a restraint on the introduction of such new powers; see De Simone 2010, p. 306 ss.

  21. 21.

    After the German Federal Court issued an (again extended) injunction in 2008, prohibiting law enforcement authorities the access to retained data, the Court nullified the German Data Retention Law on March 2, 2010, 1 BvR 256/08.

  22. 22.

    Romania: Decision no. 1258 of 8 October 2009, published in: Official Gazette no.798 of November 23, 2009; Czech Republic: Data Retention in Telecommunications Services, 2011/03/22–Pl. ÚS 24/10.

  23. 23.

    See Orwell 1949.

  24. 24.

    Warren and Brandeis 1890, p. 205 (refer to the right “to be let alone”); Hosein 2006, pp. 122–125 and 131–135.

  25. 25.

    See Sect. 1.1.

  26. 26.

    Privacy encompasses different legal aspects, an important foundation can be seen in the right of liberty and human dignity; for a recent overview see Cheung 2009, pp. 191–217; the text of this subchapter is partly based on Weber 2012b, pp. 273–280.

  27. 27.

    QQ is an international messenger with more than 1 billion registered and 500 million monthly active accounts and, according to their own statements, the most popular instant messaging service and the largest online community in China; see http://www.tencent.com/en-us/index.shtml.

  28. 28.

    By installing a keyword blocking program (OpenNet Initiative 2009, p. 15).

  29. 29.

    Unfortunately, this is not only a problem in countries with limited human rights protection; among others also Germany and the USA accomplished excessive citizen surveillance and monitoring (European Parliament 2010).

  30. 30.

    Extensively on this subject Weber 2011a and Mayer-Schönberger 2009.

  31. 31.

    This approach has been repeatedly reiterated by members of the European Commission, for example by EU justice commissioner Viviane Reding in a speech to the European parliament on 16 March 2011.

  32. 32.

    In more detail see Sect. 3.1.4.2(1).

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  1. Law Department, University of Zurich, Rämistrasse 74/38, 8001, Zurich, Switzerland

    Rolf H. Weber & Ulrike I. Heinrich

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  1. Rolf H. Weber
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  2. Ulrike I. Heinrich
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Correspondence to Rolf H. Weber .

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Weber, R.H., Heinrich, U.I. (2012). Legal Foundations of Anonymity. In: Anonymization. SpringerBriefs in Cybersecurity. Springer, London. https://doi.org/10.1007/978-1-4471-4066-5_3

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  • DOI: https://doi.org/10.1007/978-1-4471-4066-5_3

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