Is There a Right to Offline Alternatives in a Digital World?

  • Murat Karaboga
  • Tobias Matzner
  • Hannah Obersteller
  • Carsten Ochs
Part of the Law, Governance and Technology Series book series (LGTS, volume 36)

Abstract

More and more offline devices are weaved into the Internet of Things. Besides beneficial effects, the ubiquitous digitization also poses substantial risks for users’ privacy and self-determination. In this paper, we discuss whether a right to offline alternatives, hence to lead a non-digital life, might be a reasonable demand to counter such worries. In the search for answers, we investigate the – possible – societal utility and reasonability of such an ambition, as well as potential damages individuals or even the society might suffer, if such a right would be established. Furthermore, relevant aspects of the current legal framework are presented, followed by an analysis of former and ongoing Internet of Things regulation initiatives, asking whether the right to offline alternatives may have already been recognized and part of regulatory balancing processes.

Keywords

Offline alternatives Internet of things Policy Data protection 

2.1 Introduction

After decades of development, premature hopes and unrealistic growth perspectives, the Internet of Things (IoT) finally seems to be very close to truly emerging. Thanks to advances in microprocessor technology, it is becoming increasingly possible to integrate digital features into everyday objects which were previously predominantly offline – and thereby to weave them into the Internet of Things. However, not only are digital features added to existing offline capabilities, but, in favor of pushing interconnectivity for multiple purposes, the current trend clearly indicates that formerly offline objects are more and more replaced by interconnected devices – as is the case with analogue television or cars. At the same time, this development towards a digitally networked society creates substantial risks for users’ privacy and self-determination. Nonetheless, these risks are often hard to notice due to design strategies in pervasive computing based on the idea that information technology should merge into the background and provide a seamless transition from prior experiences and practices. In many cases, nothing changes at all: a plug socket still simply provides electricity if a ‘smart’ grid is running in the background. Yet, this is a qualitatively different infrastructure for a time in which decentralized power production is becoming ever more common - and which enables all kinds of detailed surveillance.1

Thus, a discourse emerges around a right to network-free or “offline” alternatives.2 Offline technology would reduce risks to privacy and also evade the imposition – if at all possible – of having to navigate complex system settings to disable services one never wanted in the first place. However, in the near future, it will be impossible to buy a car not equipped with the mandatory eCall system and already today it is difficult to find a state of the art TV without networking capabilities, not to mention one, which still uses analogue signals. In fact, even though being offline is the default state in the current legal framework, unless there are offline alternatives to networked devices in the digitized world of tomorrow, individuals will be forced into allowing the processing of their data in order to participate in society.

While in some cases, as is the case with eCall, governmental regulation provides balance between fundamental rights and the public interest, in other cases the market decides whether offline alternatives are worth maintaining. However, rather than letting the market decide, and make offline alternatives a luxury for the few, one could argue for a right to have an alternative, particularly for technologies that have already worked without data connectivity for a long time and which pose a high risk to privacy, like television, cars, or public transport. Besides this, such a right to offline alternatives could also contribute to improving the political process of balancing fundamental rights and other societal needs.

At the same time, claiming a network-free alternative may seem selfish, antisocial or irresponsible. For example, assistance systems in cars promise to make driving much safer. Insisting on an offline alternative would thus amount to insisting on a right to human fallibility compared to safer IT based systems. Important infrastructure like water, electricity, or public transport cannot be provided at an individualized level of pervasion with new technologies. Thus, there are good reasons not just for a lack of offline alternatives, but also for their active proscription.

In this article, we want to reflect on the idea of a right to offline alternatives – its advantages and disadvantages – the current legal status quo and regulatory opportunities that could enable such a right or oppose it. In this sense, we have to further stress the importance of (Sect. 2.2) why we should think about a right to offline alternatives in the first place, (Sect. 2.3) how reasonable it is to claim a right to offline alternatives, (Sect. 2.4) how to deal with the current legal framework in order to identify possible points of reference, (Sect. 2.5) and whether a right to offline alternatives might be tied to already existing discussions on IoT regulation in Europe and how promising its inclusion might be.

2.2 Context of the Problem: Why We Should Think About a Right to Remain Offline?

Why do we even think about a right to remain offline? Why do many people express wishes for a non-networked alternative to the many appliances that begin to form the Internet of Things? Certainly, privacy and data-protection are important reasons. The constant pressure to check news, messages, friends’ status might be another reason. However, taking such reasons as justifications to remain offline, and to refuse networked devices entirely, seems to express a pessimistic stance towards information technology. It seems to entail that substantial privacy and data protection cannot be had with networked devices – the many attempts to develop privacy enhancing technologies notwithstanding. It also seems to express a reluctance to engage with new technologies in order to find an appropriate usage.

Actually, the situation is more complex. Just disconnecting is an answer to many concerns or attitudes. We want to discuss important examples outlining, why the right to remain offline is a sensible claim – as well as the problems with such a standpoint.

2.2.1 The Value of Established Practices

Networking capabilities are increasingly included in devices we already know. We get “smart” cars, TVs, or fridges. There are longstanding, habitual forms of use – just think of the immense impact cars and TVs have had on our daily behavior since the 1950s. Many people just wish to carry on with this usage. But if they want to have sensible privacy and data protection, they cannot. This problem has several layers: one is marketing and user-friendliness. For example, what we knew as TV, i.e. a receiver for terrestrial or cable based analogue audio-visual signals, is already of no use in many areas. There simply is no analogue signal to receive, no cable to connect to any more. One needs a digital receiver – a networked device by design. Accordingly while we have a different supporting infrastructure and functionality in the background, the visible devices are still sold as TVs and can be used like the TVs we are used to. But the implications for privacy and data protection, on the other hand, are already different.3 In this case, the wish to use the devices as we did before is partly the result of marketing strategies, but also attempts at user-friendliness, which aim to dissimulate the underlying infrastructural changes and their implications for privacy and data protection. However, just accusing this intransparency and asking that everyone be conscious of the true functionality of their new devices is also too simplistic. It is one thing to say that persons using new technologies should be conscious what they are doing. But it is another thing, if technologies many people are used to are no longer available without additional requirements or costs.

Often, such claims to the value of established practices are countered by comparing current developments with earlier technological changes. Former concerns seem quite ridiculous in hindsight, e.g. the fear that the human brain could not withstand rail-travelling4 or the conviction that riding bicycles is essentially unhealthy.5 However, such arguments are to be taken with care. First, our ease in using these technologies today shows that we had ample time to develop practices of use which mitigated problems and allow the benefits. That very fact shows the value of established practices of use, which for some are destroyed by new networked technologies. Of course, we cannot maintain them forever. But just asking that everyone adopt – sink or swim – is not that unproblematic. And second, even if change is necessary and even if in a few decades we reach a state where today’s worries seem completely outdated, we have to make sure that we reach that state without leaving people behind. A social transition of the scale brought about by ubiquitous computing and the Internet of Things cannot be judged by its outcome alone. It does (or will) affect our whole society. Change should happen in a way that does justice to the range of persons affected.

2.2.2 Basic Services and Their Dependence on Network Technologies

This is of particular importance when change concerns basic infrastructure like mobility (smart cars), electricity (smart meters), or healthcare (ambient assisted living). These should be available for everyone, regardless of whether they are techno-optimists or luddites. A similar argument can be made for media. Opinion formation needs qualitative information. This is the reason why many states have circumspect public media services. Since they serve a basic democratic function – which nowadays also includes informing the public about risks and benefits of technology – accessing them should not be tied to a particular stance on technology. In particular, public media should be accessible without risks to other fundamental rights like privacy or autonomy. So rather than thinking only about the wish to continue to use devices as we know them, an important line of thought should be: is there a device that guarantees the legally and morally necessary access to fundamental services without any additional costs (that are not necessary for realizing this service)?

2.2.3 Autonomy and Individual Property

Another value that is at stake is autonomy. In particular the kind of autonomy that is closely related to individual property. Property, in this context, means that once we have bought a device, we can use it whenever and how we like, including to switch it off or to manipulate its functions. In contemporary societies, this is of course only partly true. For example, many jurisdictions prohibit operating receivers at certain frequencies. So, manipulating radios or TVs in this manner is illegal. Yet, these can be sensibly conceived as legal exemptions to a basic autonomy regarding the use of private property. This changes with networked devices, as we increasingly subscribe to services as opposed to buying devices. We know this phenomenon, for example, in communication technologies or digital media for roughly two decades, where it brought about different products and usage. But now the same transition happens within the inconspicuous devices we rarely think about. Engaging with this predicament takes time, knowledge and resources. Consequently, demanding the right to remain offline is also one way of expressing the demand for this kind of autonomy – the possibility to fully own and control technology.

The value of autonomy in this context also needs to be seen against the foil of the plurality of users. It is very hard to judge how precisely a technology will affect the lives of the many groups of potential users, differing in age, culture, knowledge, resources, individual preference and so on. As we argue above, it should be the aim to provide technologies that mitigate most of these problems. However, it is quite realistic to admit that this will not be achieved immediately for everyone. In this case it might be sensible to claim that individuals whose concerns have not been answered should be able to choose an offline alternative that still provides the necessary functionality – at least for the time being until better solutions are available. From this standpoint, the right for offline alternatives might be considered an approach to mitigate changes rather than the final aim of technological developments.

2.2.4 The Right to Remain Offline: An Individualist Approach to Societal Problems

On the other hand, there are some reasons why claims for offline alternatives are to be treated with caution. First of all, they express a very individualistic stance. But the individual possibilities to engage with technologies are not a given but the result of particular socio-technical arrangements. Thus, a claim to remain offline runs the risk of disconnecting a political demand from its enabling possibilities. This need not be the case, because disconnecting technically does not equal disconnecting socially. However, there is a difference between an individual desire to remain offline and a social negotiation about not using certain technological possibilities (see below Sect. 2.3). This is particularly salient concerning commodities. Shoshana Zuboff has convincingly argued that in “surveillance capitalism”6 the relations between influential corporations and consumers structurally change. Most of the successful IT companies sell data, ads etc. That is, the consumers who user their services and devices are not their prime clients (their clients are those that buy ads and data), compared to traditional industries like cars or food production. So the democratic relationship between consumers and companies changes. The companies simply need a big enough user base to generate good data, which will yield revenues elsewhere. But this user base is not based on a traditional consumer relationship where one can freely decide whether to buy a product or not and how to use it once bought. The companies do not depend on buying their products but on a sufficient stream of data input. This shows that networked devices and services cannot be turned into autonomously used property, as discussed above. Thus, de-networking seems to be the only solution of providing this autonomy. But such a move is just one strand of the many approaches to the distribution of information. Others like commons or public goods for example are better tailored to address the inherently social aspects of many IT services while protecting against appropriating the data derived from their use.

2.2.5 Individual Privacy vs. Public Benefits

On a more fundamental level, individual doubts, desires, and problems have their limits in substantial public benefits. For example, the eCall system7 is a mandatory networked technology in cars which automatically issues emergency calls when necessary. Here, social values like safety and responsibility in traffic are advanced against individual values like autonomy or concerns for privacy (see below Sect. 2.4). Such deliberations, however, have to be carefully contextualized. If individuals raise concerns with a new technology, even if that seems a minor or even outlandish position, this might well be because of the socio-technical situation of that particular group. So one has to distinguish individual idiosyncrasies from positions that express structural disadvantages, which must appear as a strange concern to those that are not familiar with the situation or do not care.

This short sketch of some of the issues shows that rather than regarding the right for offline alternatives as a polarized view with a luddite leaning, we have to acknowledge that such demands can sensibly surface in various of the many shifts and ruptures of the established socio-technical practices and situatedness. Remaining offline seems a promising approach for upholding important values. At the same time individual de-networking creates moral and pragmatic problems. Thus, a differentiated discussion whether there should be a right to remain offline is necessary.

2.3 How Reasonable Is a Right to Offline Alternatives?

In this section we will flesh out an argument that is concerned with the question of whether it is indeed reasonable to claim a right to offline alternatives. Of course, when basing an argument on “reasonableness” one runs into all kinds of problems, such as what kind of reason one refers to, to whom to grant authority to determine what is and what isn’t reasonable etc. To complicate matters, as we could see in the preceding chapter, we are dealing in this article with profoundly ethical, perhaps moral, and certainly normative issues. But then, usually, sociological training does not necessarily involve the normative analysis and ethical assessment of moral claims. Consequently, what this sub-chapter aims to bring into the debate is not a discussion around the question of whether people should be entitled to have offline alternatives, but whether, from a societal point of view, they reasonably can have such a right in the first place. In a way, dealing with this question is a symptom in and of itself. Around ten years ago, a major question regarding emancipatory politics was how to get as many people as possible into digital networks, whereas today we rather tend to ask how to keep these networks at arm’s length. Why so? And what does it mean exactly, to ‘keep digital networks at arm’s length?’ This is precisely what we will reflect upon in this section.

2.3.1 To Be or Not To Be in the Network – Is Not the Question

At first glance it seems that the question of a right to ‘network-free’ or ‘offline’ alternatives’ may be answered quickly, as the simplest way to stay free from digital networks, apparently, is to enable people to lead a non-digital life in society. Thus, the question arises as to whether there might be a right to lead a non-digital life under contemporary socio-technical circumstances. Taking a sociological stance, we will argue that the answer must be a resounding “no, there can’t be such a right.” The sociological perspective suggests that we deal with this question from a collective point of view; hence, we have to assert that in current socio-technical environments, say, in Europe, social life in its entirety rests on digital technologies, meaning that the socio-technical networks are so vast, and so stabilized, that it is in fact hardly possible to circumvent them. Whilst it may be possible to live a life unaffected by nanotechnologies, staying unaffected by digital networks seems almost impossible.

Still, also digitization is a comparatively novel phenomenon, thus all we can do is refer to historical analogies. One such analogy is provided by the printing press. Even a superfluous look is sufficient here. From the 15th century onwards, social life began to be based more and more on processes that involved printing, and, as a consequence, on reading and writing.8 Hence, in socio-technical networks that base their function to a great extent on printing, one only has a right to live a non-literal life if one opts to completely abandon “society.” Something similar goes for a right to lead a non-digital life today: the right to live such a life amounts to the right to move into the woods and live there in peace, undisturbed by emails, friending requests, sensor technologies etc. Of course, one has the right to quit society, but obviously choosing this option comes with a considerable, perhaps even existential price. Manuel Castells, when drawing sociopolitical conclusions from the Network Society analysis in a United Nation Research paper, about fifteen years ago, determined the price as follows: „The most critical distinction in this organizational logic is to be or not to be – in the network. Be in the network, and you can share and, over time, increase your chances. Be out of the network, or become switched off, and your chances vanish since everything that counts is organized around a worldwide web of interacting networks.“9

If this still holds true today (and we have good reasons to assume that it does), it follows that living within society necessarily means to lead a life within digital networks. Claiming to live within such a society in a perfectly analogous fashion amounts to claim to remaining unchallenged by reading and writing skills in a society characterized by the printing press. Practically speaking, everything is tied up with such skills – so, if anything, one has the right to acquire these skills; and from an historical point of view the spread of these skills seems to have had rather emancipatory political outcomes.

Having said this, on the one hand, there is no, there cannot be a right to lead a non-digital life in the sense just discussed, unless one opts to move out from current socio-technical settings. On the other hand, however, there is a right to inclusion, to be part of the network. We therefore have to deal with the question of the right to analogous alternatives under the premise that moving out of digital society is not an option. In other words: If we have a right to analogous practices we only may be granted such a right while staying within digitized society; thus, binary decision making in the sense of “you either opt for digitized society and accept your life to be digitized completely, or you opt for abandoning society for good” is much too simple.

2.3.2 Techniques of De-networking: Social Relations in Absence of Interaction

To understand this, we first have to clarify what it means to live in a digitally networked socio-technical setting in the first place. In a very useful essay on “de-networking” (in German Entnetzung) Sociologist Urs Stäheli accurately describes the excessive demands coming with the societal imperative of being networked.10 According to Stäheli, this imperative is so strong that we even lack terms to describe the withdrawal of network links other than by turning to terms that carry the undertones of deficiency and exclusion. Meanwhile, in practice exhausted subjects and overburdened social worlds are faced with problems stemming from over-networking: issues of capacity, efficiency, safety, and security – and, we might add, also of privacy11 – arise.12 Stäheli thus pleads for a positive notion of de-networking, and he is very clear about the unreasonableness of tying such a notion to situations of social isolation, such as living on a far-away island, or residing in an alpine cabin.13 Quite in contrast, de-networking takes place within social networks, it therefore must be conceived as a cultural technique to be applied within social environments, and not as the cutting off of all relationships to society.

Following Stäheli, we can find a kind of blue-print for conceptualizing de-networking techniques in Georg Simmel’s work on the “The Metropolis and Mental Life”.14 Of course, Simmel developed his ideas in view of a very different setting, namely urban social life at the turn to the 20th century. Still, we may draw on the metropolitan social setting as an analogy to current socio-technical networks. In the metropolis, life is characterized by bodily closeness, lack of space, and a proliferation of sensual stimuli beyond the threshold of cognitive capacities.15 Against this background, people develop a specific mental technique so as to cope with circumstances: “The mental attitude of the people of the metropolis to one another may be designated formally as one of reserve. If the unceasing external contact of numbers of persons in the city should be met by the same number of inner reactions as in the small town, in which one knows almost every person he meets and to each of whom he has a positive relationship, one would be completely atomized internally and would fall into an unthinkable mental condition.”16 Hence, metropolitan reserve “assures the individual of a type and degree of personal freedom to which there is no analogy in other circumstances.”17

Consequently, if we conceive of the metropolis as a kind of large socio-technical network, we find that within this network, people develop techniques allowing for the preservation of room to maneuver. One person’s reserve is a guarantee for preserving another person’s room to maneuver – despite the severe limitation of space, despite far-reaching observability, and despite the principal accessibility of everybody. In this sense, regarding the metropolis as a socio-technical network we may realize that the social learning process induced by the novel metropolitan situation is not limited to pressing social actors to come to a decision between only two alternatives: “if you want to live in the metropolis either you accept to be accessible by everyone or you move out.” Instead, social learning results in the development of techniques that allow for non-accessibility within the network. Of course, there are some features of social life that one has to accept in such an environment. Living in the metropolis, one has to accept the overcrowding, lack of familiarity and so on. But that does not mean that there was no possibility at all to shape the network and the practices occurring in it.

Simmel’s remarks on the metropolis oftentimes have been interpreted as a cultural critique of metropolitan life18: the indifference of the people towards each other may be understood as dehumanizing, emotional blunting; however, if we do not take up a humanist stance from the outset we may recover some civilizing potential in such an indifferent attitude – in fact, a potential that is prerequisite for a certain way of life under particular socio-technical network conditions. I again follow Stäheli’s train of thought when I now turn to Fran Tonkiss’ reading of Simmel.19 She holds that “for Simmel relations of indifference or even aversion are the only feasible way of being together in a crowded city. Any one person might be too much to take, on top of everything else that is going on around you. What appears as dissociation is, in fact, the basic form of urban sociation, one that allows us to coexist with all these largely unknown others. Not interacting with others in this sense becomes a primary condition for urban social life, securing individual calm together with relative social peace.”20 From her reading of Simmel Tonkiss develops a notion of an “ethics of indifference”, an ethics of reserve that has everything to do with collective practices of “privacy in public”.21 From Tonkiss’ point of view, indifference, under certain socio-technical circumstances, may be understood as a social virtue: a virtue made out of the necessities created by urban life. And we might add that we quite apparently need to reinvent social virtues and cultural techniques in a similar fashion today, so as to come to terms with social life in digital networks. We are called upon to reassemble the social, and Tonkiss provides us with a pretty fruitful directory how to proceed in this, when she states that “the power of the social imagination lies not only in making connections with others, but in allowing a latitude for disconnection, in accepting dissociation as a social relation, in valorizing the very weakness of weak ties“.22

These remarks are astonishingly insightful, and even more so as they were made in the seemingly very different context of urban life. For, what follows from Tonkiss’ argument is that de-networking neither amounts to moving out from the network nor does it amount to cutting off social relationships. Instead, we may consider de-networking as social relationships that exist also in absence of social interaction. Or more precise, the very socialness of the relationship even inheres in the absence of social interaction: people’s sociality is constituted by their mutual abstaining from interaction. Thus, and in a more socio-technical sense: offline alternatives may be conceived as the absence of socio-digital interaction.

2.3.3 Why We (Can) Have a Right to Offline Alternatives

This idea seems worthwhile for further exploration although, or because, at first glance it seems rather strange. In sociology we have become used to the idea that the social is constituted not exclusively by human actors, but also by artifacts, things, and material entities.23 As the “distinctions between humans and non-humans, embodied or disembodied skills, impersonation or ‘machination’ are less interesting than the complete chain along which competences and actions are distributed”,24 the question of Offline Alternatives pertains to inscribing the techniques of reserve as “behavioral scripts” into technical artifacts instead of into people. Privacy scholars might not have too many difficulties with this idea. After all, it is obvious that privacy practices are not only given shape by human ideas, norms, or actions, but also by data banks, algorithms, programming code, interfaces etc. However, conceiving of the social as being constituted by the absence of something, or of some action, seems odd, to say the least. And yet, this is precisely what allows us to develop a notion of privacy that fits current socio-digital networks. We need to conceive of privacy as a particular configuration of the socio-technical networks that we are used to call “society.” Privacies, then, are collective modes to shape the socio-technical landscape and thus determine who or what is accessible to whom or what. And these modes, this shaping is of utmost importance, if we keep in mind where “network”, now understood as an anthropological notion, originates from. Media anthropology scholar Erhard Schüttpelz already a while ago clarified that the net as a cultural technique descends from trapping techniques. The word, the metaphor and the notion have been, and still are tied to the task of making prey. In this sense, all human and socio-technical networks are always on the prowl, aiming to make prey.25

Finally, taking all the bits and pieces discussed in this section into consideration and somewhat channeling these into a summarizing argument we are now able to answer the questions motivating this chapter: whereas we do not, cannot have a right to lead a non-digital life in contemporary society, still we have a right to offline alternatives - precisely because we cannot claim a right to a non-digital life; for, at the very least we have a right to live within our socio-technical networks without falling prey to them.

2.4 What Is the Legal Status Quo?

Following a positivist approach, it could be simply concluded that, at European level, there is no effective “right to remain offline”, as it is not explicitly defined nor discussed in legal frameworks, regulatory processes or European Court of Justice’s (ECJ) rulings.

Nevertheless, it will be argued that a “right to be offline” is part of the legal system, although it is neither named nor given priority in legal weighing processes. In a world of automated data processing, being offline is the most genuine form of the right to respect of private life with regard to data protection, as guaranteed by the Charter of Fundamental Rights of the European Union (the Charter). So to speak, it is the “default setting”. Any changes to the “default” need justification. However, restrictions of the right are possible and recent legislative initiatives show that multiple societal interests are favoured over the individual interest to live an offline life.

2.4.1 To Set the Scene: The “eCall Regulation”

More than ten years ago, the European Commission came up with the first draft for a regulation on the implementation of a European in-vehicle emergency call (“eCall”) service that builds on the emergency number 112. Meanwhile, the eCall regulation26 is in force and, thus, can serve as an example for a development towards mandatory digitization: Starting from 31st March 2018 all car manufacturers are obliged to build the eCall system into their new type vehicles. If not, a new type vehicle will no longer be admissible in Europe.27 To give a brief overview: eCall is designed as a sleeping system. It does not transmit any data, and stores very little data.28 Only when the airbags are triggered or when manually activated, the eCall system dials automatically in to the mobile phone network and establishes an audio channel and data connection to the closest public safety answering point. Via the data connection, a pre-defined data set (“minimum data set”) is transmitted. The eCall system receives this data via a standardized interface which connects it to the on-board electronic. Based on the transmitted data, the public safety answering point is obliged to initiate rescue operations and to try to contact the vehicle occupants via the audio channel. To allow all this, the vehicles need to be equipped with manifold technical features, such as GPS receiver (car position), a GSM antenna (send emergency call), a hands-free module (audio connection) and certain crash sensors. The minimum data set consists of the place of accident, time of accident, driving direction, vehicle identification number (including vehicle type and fuel type), and the number of fastened seatbelts – which allows assessments about the number of vehicle occupants.29 eCall processes personal data and thus interferes – at least – with the right to protection of personal data (Art. 8 of the Charter), and is thus subject to data protection legislation.30

The eCall regulation is criticised as a gateway for a multitude of value added services that will be provided by private operators.31 Potentially the eCall system could be used to create movement and usage patterns: In terms of tracking the car, collecting the sensor data, and finally in transmitting the data to a company running evaluation software. The intrusion of privacy would hardly be justifiable.32 However, the regulation sets clear requirements for the system as required by law and neither addresses a deadline for the elimination of cars built before – and without – eCall, nor does it determine the retrofitting of vehicles already in circulation.33

2.4.2 Legal Standard: Art. 7, 8 of the Charter

The European legislator is bound by the fundamental rights laid down in the Charter.34 According to the latest treaty changes, the Charter shall have the same legal value as the European Treaties (Art. 6 (1) Treaty of European Union; TEU). This means, the provisions of the Charter need to be observed by the institutions and bodies of the EU, and by the Member States when they are implementing Union law (Art. 51 (2) Charter). Generally speaking, fundamental rights have the function of basic principles. They provide guidelines to the three state powers (legislative, executive, judiciary) and need to be respected and – in case of conflicting rights or freedoms – weighed in decision making processes: “Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.” (Art. 52 (1) Charter)

Consequently, the institutions have to weigh their legislative goals with the intrusion of individuals’ right to remain offline, if the Charter provided for such.

The provisions of Art. 7, 8 of the Charter, for their part, are generally based on the provisions of Art. 8 of the European Convention on Human Rights (ECHR).35 As the European Court of Justice (ECJ) increasingly conducts systematic monitoring of fundamental rights in the light of the Charter in its judgements,36 it seems appropriate to check against Art. 7, 8 of the Charter and thereby put the right to remain offline in the existing legal context.37

Scope

A right to be offline could be derived from Art. 7 and Art. 8 of the Charter. Art. 7 protects the “Respect for Private and Family Life”, whereas Art. 8 deals with the “Protection of Personal Data”. Both rights are usually cited together (“the right to respect for private life with regard to the processing of personal data”38) as far as it concerns personal data and its automated processing. In this respect, Art. 8 can be perceived as lex specialis to Art. 7.39 With respect to increasing processing capabilities of modern IT (including linkage and extracting completely new information), it can be concluded that more than ever there is no “insignificant” or “irrelevant” data anymore.40 Concerning this data, the data subject can determine autonomously, if and how it is processed and for which purpose(s).41 On this point, therefore, the conclusion must be that the right to respect for private life with regard to the processing of personal data can be interpreted as a right to remain offline: If (almost) all data is to be acknowledged as personal data and the individual has the right to decide if and how, and to which purpose this data is processed – the individual can decide that no data is collected or processed. No data processing is the default.

However, when acknowledging an individual right derived from Art. 7, 8 of the Charter, the next step is, to ask for its contents. Unlike other provisions (e.g. Art. 34 (2) of the Charter42), Art. 7, 8 do not constitute a positive right, but are designed as negative right: The individual has the right not be illegitimately restricted in the exercise of his/her right. But he/she does not have the right to demand – positively – the e.g. material goods to exercise his/her right.43 In other words: The ECJ could not order Germany to provide a German citizen with a car not equipped with eCall (in return for payment) if it declared the regulation as unlawful.

Restriction

Any processing of personal data is an intrusion of Art. 7, 8 of the Charter. However, neither the right to respect of private and family life nor the right to protection of personal data are absolute rights. Art. 8 (2) of the Charter allows for processing of personal data – only – if certain conditions are met: personal data “must be processed fairly, for specified purposes and on the basis of the person concerned or some other legitimate basis laid down by the law.” This means, Art. 8 itself does not only contain a general paragraph on possible restrictions, but also makes comparatively clear specifications on this restriction.44 The free circulation of data itself is considered as a fundamental value, too. Consequently, finding a fair balance is envisaged right in the Charter.45

Justification

The Charter’s function is to provide guidelines. However, those basic principles need further clarification and exact formulation in order to serve as practically applicable law. On European level, the legislator can choose, for instance, the means of a “regulation” or a “directive” (European secondary law), as defined in Art. 288 of the Treaty on the Functioning of the European Union (TFEU) to regulate a matter.

Usually, regulations and directives limit some fundamental rights in favor of others. But whenever a fundamental right is restricted, the legislator has to ensure a fair balance between the observance of the fundamental right, and the interests the legislator is pursuing. As far as it concerns the processing of personal data, the European legislator has provided a directive46 laying down minimal principles and describing the circumstances under which personal data may be processed.47 The Directive 95/46/EC describes the mechanisms allowing the data subjects’ rights and the general interest in a free data flow to be balanced, and provides for rules on the circumstances and the extent to which personal data may be processed and which safeguards are needed.48 In other words: Under which circumstances the right to respect of private life with regard to data protection may be compromised. Within the scope of the Directive, data processing is only legitimate, if the directive’s criteria are met (Art. 7 Dir. 95/46/EC). Only in these cases is data processing “legitimate”, it must be considered “illegitimate” in every other case.

But as long as a legislative act does comply with the directive, it is considered as – at least – a justifiable intrusion of Art. 7, 8 of the Charter49 and, thus, a possible legal ground for data processing. The eCall regulation overall observes the principles of data protection and is not a clearly non-proportional intrusion of Art. 7, 8 of the Charter: The regulation itself provides that all data protection must happen in compliance with the directive 95/46/EC (Art. 6 eCall regulation). If the regulation is followed on precisely, no severe data protection issues occur. To achieve the legitimate main goal of further improvement of road safety,50 eCall seems to be appropriate. To generate automated emergency calls, a less invasive technique – or way of implementation – promising the same success does not seem realistic. The principle of data minimization is observed: In fact, data is only transmitted in case of an accident – i.e., when the functionality can be of concrete use. Furthermore, the data processed is comprehensibly restricted to the information necessary to initiate rescue measures, especially with respect to the fact that the vehicle occupants might not be able to answer. Finally, the use of transmitted data is explicitly restricted to the purpose of handling the emergency situations as described in the regulation (Art. 6 (2) eCall regulation).

2.4.3 Conclusion

Principally, a right to be or remain offline can be derived from Art. 7, 8 of the Charter. But even if the right was explicitly acknowledged, on a European level this would not have further legal consequences than the individual’s right to reject or deny the automated processing of his/her personal data.

Furthermore, the right to remain offline can be restricted practically whenever urging societal interests require a restriction. In relation to other fundamental rights or societal interests it probably will not succeed: The data protection directive regulates the circumstances under which it may be compromised quite generously.

However, this finding can hardly be more than a “snapshot”. Law is not static, but subject to further development by judicial decisions as well as to future legislative initiatives. Currently, we are still living in a world of many offline areas. As far as it concerns eCall, it will take decades before all cars built before eCall became mandatory are gone. A prohibition of “old school cars” is not in sight. Furthermore, the directive 96/46/EC is going to be replaced by the General Data Protection Regulation. This might give rise to fundamental questions on the actual essence of the right derived from Art. 7, 8 of the Charter, and if it is adequately described by Union secondary law. In this context, it also seems legitimate to ask for a need of concrete regulation and to take a look at significant debates in the context of digitization.

2.5 Offline Alternatives in EU Policy Debates

European politics, at various levels, is well aware of the fact that digital technologies are about to proliferate in many areas of society and aspects of life. Thus, initiatives at both European Union and national level have been taking up the challenge of advising and monitoring the digitization of society in order to ensure that its implications are economically profitable and socially just. While the former aspect relates to the observation that the European Community largely failed a successful strategic positioning during the spread of the internet in the 1990s and of smart devices since the middle of the last decade, and thus lost ground to US and Asian competitors in the digital economy,51 the latter relates to the Union’s strategy to shape innovation so that it is compatible with people’s needs. These, however, can be understood in very different ways.

Besides the various national strategies of EU Member States, the European Commission has been playing an active part in the shaping of emerging IoT markets. Thus, the Commission has, since 2005, initiated multi-stakeholder discussion groups and consultations – involving representatives from industry and NGOs. These, initially focusing on RFID,52 later led to the Commission’s comprehensive, but still RFID focused, IoT strategy,53 its strategic IoT research agenda and finally, to the Digital Single Market Strategy for Europe.54 However, although – regarding the idea to a right for offline alternatives – the concept of the ‘right to the silence of the chips’ in the IoT Action Plan of the Commission had been of particular importance, it ultimately did not lead to concrete conclusions. In this section, we would like to sketch out the most relevant developments in this regard (on the European policy agenda) and the current attitude of the EU towards digitization in order to explore the opportunities for a right to offline-alternatives in the European context.

2.5.1 The Right to the Silence of the Chips on the European Policy Agenda

While the restrictions to privacy, freedom and self-determination in the context of emerging technologies had been a regular topic of scholarly and civil society discussion, a series of ideas as to how to deal with potentially harmful aspects of new technologies emerged during the 2000s like the right to be forgotten – or grew in importance such as privacy by design and privacy by default. One important contribution in this connection was made by Greenfield in 2006, who brought up the rather general idea to simply say ‘no’, hence to shut down networking capabilities of ubiquitous systems.55 Another contribution was made by EDRi when demanding user control by removing, altering or disabling RFID functionality.56 The concept of the ‘right to the silence of the chips’, however, was introduced into the political debate by Bernard Benhamou, Inter-Ministerial Delegate on Internet Usage at the French Ministry of Digital Economy, at the time of the French Presidency of the EU during the second half of 2008.57 Slightly different from the idea of having a fundamental right to offline-alternatives, the concept revolved around the idea that individuals “must be able to control the way in which their personal data are used, and even the way in which these chips can be deactivated. So in the future, citizens will have to intervene in the architecture of these systems in order to enjoy a new kind of freedom: the ‘silence of the chips.’”58

After that, the European Commission – more precisely the Directorate-General CONNECT (then Directorate General Information Society and Media) – initiated a public debate and expert discussion on the matter. This led to the inclusion of the concept in the Commission’s action plan in 2009. This received positive resonance from the European Parliament and the European Data Protection Supervisor (EDPS),59 and which saw further expert group debate.

While some, e.g. civil society groups, regarded it as a rather comprehensive right to disconnect oneself from information technology in general,60 its strong focus on RFID tag deactivation or removal, however, was a detriment to its further acceptance.

As a result, during the IoT expert group’s meetings between August 2010 and November 2012, it was criticized both for being not well defined in comparison to related data protection concepts such as the right to be forgotten, privacy by design,61 and privacy by default as well as for putting high demands on technology developers without identifying relevant technical means for implementing it.62 However, both problem definition and perception of the future, over the years, evolved from a context where human agency was still possible, to a context where “objects [take] decisions autonomously without any user intervention, without possible user awareness, and ‘on user behalf.’”63 Accordingly, the concept of the silence of the chips was not even mentioned once in the final reports of the responsible IoT expert group.64

2.5.2 A Paradigm Shift in European Politics?

Within such a context and in line with the promises and visions of the IoT industry,65 the importance of enabling omnipresent data collection for economic success and the good of society (smart traffic, smart grids, smart health and industrial internet) as well as individual well-being (ambient assisted living systems, smart mobility services, cost savings through smart city environments and health improvement through smart health applications) were given a higher significance then allowing the individual to easily opt-out of the ecosystem.66 Instead, by the adoption of a post privacy rhetoric, a change of privacy values and a change of course towards a more innovation-friendly privacy regulation was argued to be inevitable and necessary.67 In this sense, the comprehensive protection of individual rights such as privacy – despite the important progress made by the General Data Protection Regulation – as one aim of the European Union in the attempt to balance innovation and fundamental rights, has lost ground in its wider task of creating the right conditions for digital networks and services to flourish in order to maximize the growth potential of the Digital Economy.68

This policy is reflected by the Commission’s research policy in the IoT sector: After basic research in privacy and data protection was given a high significance in the 7th research framework programme – in line with the above findings and in the face of an increasingly unfolding global IoT economy and the imminence of the repeated success of non-European businesses – in Horizon 2020, application and implementation oriented IoT related research was given much broader scope. Originally founded in 2007 with the aim of reinforcing research on RFID, the European Research Cluster on the Internet of Things (IERC) soon became the centre of IoT related European research, gathering both IoT projects funded by the European research framework programs and national IoT initiatives. Besides, both the promotion of Large Scale Pilots (LSP) as well as the foundation of the Alliance for Internet of Things Innovation (AIOTI) in 2015 serve the purpose of further developing application orientation while strengthening ties between Commission, the IoT research community and key IoT industry players. This, however, leaves only little room for horizontal – ethical and privacy – issues. Thus, ethics and privacy, especially regarding transparent data collection and usage, creating trust among users and delivering digital literacy skills, together with other challenges such as security, standards and interoperability, user acceptability, liability and sustainability are regarded as yet another aspect to be taken into account in order to leverage the economic potential of digitization on the inexorable road to the ever increasingly hyper-connected society of tomorrow.

2.5.3 Digital Sovereignty, Algorithmic Regulation and the Individual

In a broader perspective, the European Digital Agenda, by aiming at strategically opening up new market segments, strives to gain sovereignty in the digital world by winning market share in the digital economy – which is currently dominated by Non-European players to a significant extent. Digitization and the free flow of information, in this sense, is conceived as a societal need of utmost importance both in order to maintain and develop Europe’s prosperity and to demonstrate competitiveness and thus to underscore Europe’s global influence. While individual claims to offline alternatives may seem rather insignificant in the face of this important goal, there are societal aspects as well which should be considered when thinking about a right to offline alternatives. In fact, the latest developments of the Internet are far better characterized by processes of concentration rather than by the long debated horizontal levelling of geographical differences or democratization. These may pose new risks to Europe and its societies in the course of achieving digital sovereignty.69

As a consequence of the success of smart mobile telephony, tablets and cloud services, a massive shift of data flows towards US technology companies’ data centres has taken place over the last ten years. Actually, US American companies – Google, Amazon, Facebook, Apple and Microsoft etc. – were in control of 80% of the most frequently used Internet services globally in 2013.70 Already for a number of decades, the diffusion of technology, together with the changing and contested role of nation-states in a globalized and networked information society led to the continued delegation of authority in western democracies to non-state entities.71

In the context of the IoT, however, a new kind of techno-solutionism is about to emerge: As more and more aspects of life get “smart” through interconnected devices, desires are awakened on the sides of businesses and state officials. While techno-libertarian proponents of the IT industry, on the one hand, criticize established patterns of policy-making and static and inflexible laws as inefficient, they contrast this with the promises of “smart” or “algorithmic” regulation,72 which builds upon the idea that policy-making and regulation can be optimized towards a technocratic evidence-based “data-driven” and “results-oriented” politics, which itself is fed with data from sensors and feedback mechanisms of the Internet of Things. Some policy-makers, on the other hand, welcome such technology focused solution approaches in order to facilitate their increasingly difficult job of policy-making in a global economic and political context of growing complexity.73 Typical applications are to be found in the realms of public infrastructure and the healthcare sector. Google, for example, through its acquisition of nest, has already literally got a foot in the door of private households and has been making revenues by selling energy usage data to the utility sector.74 What seems as a win-win situation to each side involved, − Google advises private households’ energy usage in order to lower energy consumption, which returns as savings to the users and as revenues to the utilities and finally back to Google – may reveal itself as the trailblazer of the infiltration of public services and critical public infrastructures by Internet monopolists. In other domains, for example in healthcare, even societal achievements and individual self-determination are at stake. The sharing of health data with healthcare-system players such as government bodies and private businesses such as insurance companies in order to achieve the ideal of a healthy society will be forcing the individual to live a healthier life or to bear the negative consequences by paying higher insurance fees or getting secluded from state services, not to mention societal stigmatization.

In this way, an all-too euphoric focus on the problem-solving capabilities of new technologies could undermine democratic principles such as processes of democratic decision-making as is stated by Morozov.75 If the individual’s self-determination and position in society is increasingly affected by the data it provides, far reaching societal upheavals will be the result. These could ultimately lead to the erosion of the principle of solidarity and individuals that are pushed to lead a normalized life. Here, a right to offline alternatives may provide the individual with the necessary space, to pursue his very own individual goals. Yet, it is clear, that such an individual disconnect would come into conflict with societal goals. So maybe a right to offline alternatives should be seen less as a definite goal of policymaking but rather as an important counterweight against the techno-political governance of the population.

2.6 Conclusion

In tomorrow’s digitized and interconnected societies, a right to offline alternatives, hence to lead a non-digital life while still being able to participate in society makes less sense, as the functioning of fundamental societal connections will be coupled with the interconnectivity of exactly these aspects of life. At the same time, this is precisely the reason, why a right to offline alternatives in certain contexts makes sense and yet, it is this very context dependence what makes the matter so complicated. Networked technologies can be found in all areas of life. But these are structured by different social relations and practices of use. Furthermore, as we have shown regarding the “ethics of indifference”, technological changes are intertwined with changes in the norms that govern social relations. This socio-technical setting provides the normative context against which the legitimacy of claims to offline alternatives has to be seen. Thus, the question whether there should be a right to offline alternatives cannot be answered without regard to the specific context. On the one hand, subsuming the individual to the functioning of society within a fully digital environment calls for measures in order to preserve alternative ways of life. On the other hand, there are also good reasons on different levels – ranging from the individual through society to environmental protection – to call for digitization.

The case of the eCall regulation, as far as it regulates the basic system which normally does not transmit any data, until a pre-defined situation occurs, that allows data transmission, may serve as an illustrative example of a context specific interconnection with minimized concomitant negative repercussions. The push of industry into several aspects of private life, in contrast, may serve as a negative example due to much wider privacy and autonomy relevant implications such a development would probably have. Special consideration needs to be given to the digitization of areas of life: Industry players – in order to generate revenues – will certainly demand further digitization and will frame their particular interests in digitization as social interest. Politics and regulation – against the current trend – would be well advised to critically question the promises of industry, especially regarding public and critical infrastructures, as extensive and uncontrolled interconnection may pose new risks both to the individual and the society. It would thus be desirable to revive broader policy debates on the digitization of society and their implications rather than heading towards a point of no return. In this sense, the claim for offline alternatives can also be seen as a warning: if disconnecting from technology, and thus from a part of society, seems the best solution, democracy and plurality are already in danger. Of course, our rather basic discussion of fundamental aspects needs to be expanded in order to address legal, regulatory, societal and technical questions in the course of specifying the conditions under which a right to offline alternatives may ultimately be desirable as well as feasible.

Footnotes

  1. 1.

    Andrés Molina-Markham et al., “Private memoirs of a smart meter,” Proceedings of the 2nd ACM workshop on embedded sensing systems for energy-efficiency in building, ACM, 2010.

  2. 2.

    With this, we particularly dissociate ourselves from the 2013 hype that evolved, for example, around the so called #offlineday (see: http://kevinkyburz.ch/am-15-dezember-mache-ich-einen-offlineday/ (accessed March 3, 2016)) which is rather about a temporary disconnect from the internet or social networks in order to recharge and regain productivity, which is why its supporters were derogatively labeled as disconnectionists and heavily criticized for their lack of fundamental critique of worrying broader developments of the digital society: https://newrepublic.com/article/116618/technologys-mindfulness-racket (accessed March 3, 2016).

  3. 3.

    Marco Ghiglieri, “I Know What You Watched Last Sunday A New Survey Of Privacy In HbbTV,” Workshop Web 2.0 Security & Privacy 2014 in conjunction with the IEEE Symposium on Security and Privacy, 2014.

  4. 4.

    Wolfgang Schivelbusch, The railway journey: The industrialization of time and space in the nineteenth century (Oakland: University of California Press, 2014).

  5. 5.

    Garath Rhees, “The hidden dangers of cycling,” garethreeds.org, last modified January 10, 2012, accessed February 29, 2016, http://garethrees.org/2012/01/10/shadwell/.

  6. 6.

    Shoshana Zuboff, “Big other: surveillance capitalism and the prospects of an information civilization,” Journal of Information Technology 30(1) (2015).

  7. 7.

    European Commission Press Release, eCall: automated emergency call for road accidents mandatory in cars from 2015 (Brussels, 13 June 2013).

  8. 8.

    Elisabeth Eisenstein, The Printing Press as an Agent of Change: Communications and Cultural Transformations in Early Modern Europe (2 Vols. ed.) (Cambridge/UK: Cambridge University Press, 1979).

  9. 9.

    Manuel Castells, “Information Technology, Globalization and Social Development,” (UNRISD Discussion Paper No. 114, UN Research Center, September 1999: 8), accessed March 8, 2016, http://www.unrisd.org/unrisd/website/document.nsf/ab82a6805797760f80256b4f005da1ab/f270e0c066f3de7780256b67005b728c/$file/dp114.pdf.

  10. 10.

    Urs Stäheli, “Aus dem Rhythmus fallen. Zur öffentlichen Entnetzung,“ Kursbuch 177, 2013: 66–77.

  11. 11.

    Stäheli explicitly turns against equating „denetworking“ with the private. However, his idea of the private resembles the bourgeois notion of a private life-world as opposed to “the public.” Of course, such an understanding of privacy is one-dimensional, much too crude, and illegitimately reifies the plurality and fluidity of privacy practices as a stable thing called “privacy”, being juxtaposed to “the public”. If we set out from such an simplistic notion of privacy, then Stäheli is right to claim that equating “denetworking” with this notion dissolves any potential for criticism. However, as we will demonstrate below, contrary to what Stäheli believes we still may reconcile “denetworking” with a critical and emancipatory idea of privacy.

  12. 12.

    Stäheli, “Aus dem Rhythmus fallen,“ 67, 68.

  13. 13.

    Stäheli, “Aus dem Rhythmus fallen,“ 71.

  14. 14.

    Georg Simmel, “The Metropolis and Mental Life,” in The Blackwell City Reader, ed. Gary Bridge, and Sophie Watson (Chichester: Wiley Blackwell, 2010), 103–110.

  15. 15.

    Simmel, “The Metropolis and Mental Life,” 103–104, 108.

  16. 16.

    Simmel, “The Metropolis and Mental Life,” 106.

  17. 17.

    Simmel, “The Metropolis and Mental Life,” 107.

  18. 18.

    Stäheli, “Aus dem Rhythmus fallen,“ 75.

  19. 19.

    Fran Tonkiss, “The Ethics of Indifference: Community and Solitude in the City,” International Journal of Cultural Studies 6, No. 3 (2003).

  20. 20.

    Tonkiss, “Ethics of Indifference,” 300.

  21. 21.

    Helen Nissenbaum, Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford: Stanford University Press, 2010).

  22. 22.

    Nissenbaum, Privacy in Context, 303.

  23. 23.

    Bruno Latour, “Where Are the Missing Masses? The Sociology of a Few Mundane Artifacts,” in Shaping Technology/Building Society. Studies in Sociotechnical Change, ed. Wiebe E. Bijker and John Law (Cambridge/US: MIT Press, 1992), 225–259.

  24. 24.

    Latour, “Missing Masses”, 243.

  25. 25.

    Erhard Schüttpelz, „Ein absoluter Begriff. Zur Genealogie und Karriere des Netzwerkbegriffs,“ in Vernetzte Steuerung: Soziale Prozesse im Zeitalter technischer Netzwerke, ed. Stefan Kaufmann (Zürich: Chronos, 2007), 25–46.

  26. 26.

    Regulation (EU) 2015/758 of the European Parliament and of the Council of 29 April 2015 concerning type-approval requirements for the deployment of the eCall in-vehicle system based on the 112 service and amending Directive 2007/46/EC (“eCall regulation“).

  27. 27.

    The regulation applies to vehicles of certain categories only, Art. 2 (1) eCall regulation, which, however, includes the average passenger car (“new types of passenger cars and light commercial vehicles”, rec. 11 eCall regulation).

  28. 28.

    Art. 6 (5) eCall regulation determines that only the last three GPS positions may be stored.

  29. 29.

    Art. 3 (3) eCall regulation; DIN EN 15722:2011; Volker Lüdemann, Christin Sengstacken, „Lebensretter eCall: Türöffner für neue Telematik-Dienstleistungen,“ RDV 30/4 (2014), 178.

  30. 30.

    Concerning the processing of personal data by eCall see “Opinion of the EDPS on the proposal for a Regulation of the European Parliament and of the Council concerning type-approval requirements for the deployment of the eCall system and amending Directive 2007/46/EC,” EDPS, accessed March 14, 2016 http://www.europarl.europa.eu/document/activities/cont/201311/20131128ATT75138/20131128ATT75138EN.pdf.

  31. 31.

    Cf. “eCall – Do you have any concerns for your privacy? You shouldn’t…,” Newsroom Editor, European Commission, accessed March 7, 2016: https://ec.europa.eu/digital-single-market/en/news/ecall-%E2%80%93-do-you-have-any-concerns-your-privacy-you-shouldnt.

  32. 32.

    Article 29 Working Party, “Working document on data protection and privacy implications in eCall initiative,” Opinion 125, adopted on September 26, 2006.

  33. 33.

    Art. 4 eCall regulation (“(…) all new types of vehicles referred to in Article 2 (…).”) and rec. 12 eCall regulation.

  34. 34.

    Cf. ECJ, C-362/14, para. 60: [The European Union’s] “institutions are subject to review of their compatibility with, in particular, the Treaties, general principles of law and fundamental rights (…)”.

  35. 35.

    Explanations relating to the Charter of Fundamental Rights (2007/C 303/02), Art. 8.

  36. 36.

    Jürgen Kühling, „Der Fall der Vorratsdatenspeicherungsrichtlinie und der Aufstieg des EuGH zum Grundrechtsgericht“ NVwZ (2014), 681–685, referring to ECJ C-293/12 and C-495-12.

  37. 37.

    Without prejudice to further fundamental rights that might be affected.

  38. 38.

    E.g. judgement of the Court in joined cases C-92/09 and C-93/09, para 52.

  39. 39.

    Ino Augsberg, „Charta der Grundrechte der Europäischen Union (GRC)“ in Europäisches Unionsrecht: Vertrag über die Europäische Union - Vertrag über die Arbeitsweise der Europäischen Union - Charta der Grundrechte der Europäischen Union, Kommentar, vol. 7, ed. Hans von der Groeben, Jürgen Schwarze, and Armin Hatje (Baden-Baden: Nomos, 2015), Art. 8, para. 1.

  40. 40.

    Cf. judgement of the German Constitutional Court, BVerfGE 65, 1 (45); see also judgement of the ECJ in joint cases C-293/12, C-594/12, para. 33.

  41. 41.

    Augsberg, „GRC“, Art. 8 para. 6.

  42. 42.

    Jan Bergmann, Handlexikon der Europäischen Union (Baden-Baden: Nomos, 2015), Grundrechtecharta der EU, III.

  43. 43.

    Augsberg, „GRC“, Art. 7 para. 11.

  44. 44.

    Jan Bergmann, Handlexikon der Europäischen Union, Grundrechtecharta der EU, IV.

  45. 45.

    Art. 7 (2) Charter.

  46. 46.

    Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.

  47. 47.

    Strictly speaking, the scope – in terms of conditions and limitations for the exercise of the right of Art. 8 of the Charter – is shaped by Directive 95/46/EC, Art. 8 of the ECHR and on the Council of Europe Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data; cf. Explanations relating to the Charter of Fundamental Rights (2007/C 303/02), Official Journal of the European Union – 303/17, Art. 8.

  48. 48.

    ECJ, C-101/01, para. 82.

  49. 49.

    ECJ, C-293/12, C-594/12, para. 40.

  50. 50.

    Rec. 4 eCall directive.

  51. 51.

    Günther Oettinger, “Von 0:4 zu 4.0: Wenn Europa mit Amerika mithalten will, braucht es eine digitale Strategie,” Zeitschrift IP - Internationale Politik, July/August (2015).

  52. 52.

    Communication from the Commission to the Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Radio Frequency Identification (RFID) in Europe: steps towards a policy framework, Com(2007) 96 final (2007) (Brussels, 15 March 2007).

  53. 53.

    Communication from the Commission to the Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Internet of Things – An action plan for Europe, COM(2009) 278 final, Brussels, 18 June 2009.

  54. 54.

    Communication from the Commission to the Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, A Digital Single Market Strategy for Europe, SWD(2015) 100 final, Brussels, 6 May 2015.

  55. 55.

    Adam Greenfield, Everyware: The dawning age of ubiquitous computing (Berkeley: New Riders Publishing, 2006), 451.

  56. 56.

    “RFID and Informed Consent – Using and Removing RFID Functionality,” EDRi, last modified December 5, 2007, https://edri.org/edrigramnumber5-23rfid-informed-consent/ (accessed March 13, 2016).

  57. 57.

    Gérald Santucci, “The Internet of Things: The Way Ahead” in Internet of Things - Global Technological and Societal Trends from Smart Environments and Spaces to Green ICT, ed. Ovidiu Vermessan, Peter Friess, (Aalborg: River Publishers, 2011), 78.

  58. 58.

    Bernard Benhamou, “Organizing Internet Architecture,” (Esprit, May 2006), 14, accessed March 5, 2016 http://www.netgouvernance.org/esprit-eng.pdf.

  59. 59.

    “Opinion of the European Data Protection Supervisor on Promoting Trust in the Information Society by Fostering Data Protection and Privacy,” EDPS, 19.03.2010, accessed March 5, 2016 https://secure.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/Consultation/Opinions/2010/10-03-19_Trust_Information_Society_EN.pdf. European Parliament, Report on the Internet of Things, A7–0154/2010, Rapporteur: Maria Badia I Cutchet (10 May 2010) retrieved at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A7-2010-0154+0+DOC+PDF+V0//EN (accessed March 25, 2016).

  60. 60.

    “New EC Expert Group on the Internet of Things,” EDRi, last modified October 6, 2010. https://edri.org/edrigramnumber8-19expert-group-rfid-iot/ (accessed March 13, 2016).

  61. 61.

    European Commission Information Society and Media Directorate-General, Meeting Minutes of IoT Expert Group of 19 November 2010, retrieved at: http://ec.europa.eu/transparency/regexpert/index.cfm?do=groupDetail.groupDetailDoc&id=7556&no=3 (accessed March 25 2016).

  62. 62.

    Gérald Santucci, “Privacy in the Digital Economy: Requiem or Renaissance? An essay on the future of privacy,” The Privacy Surgeon (September 2013), http://www.privacysurgeon.org/blog/wp-content/uploads/2013/09/Privacy-in-the-Digital-Economy-final.pdf (accessed March 25 2016).

  63. 63.

    Gérald Santucci, “Towards Connectobjectome: The age when the totality of all objects become connected,” in The Internet of Things 2012: New Horizons, ed. Ian G Smith, (Halifax: Platinum Print, 2012), 9.

  64. 64.

    see “Conclusions of the Internet of Things public consultation,” https://ec.europa.eu/digital-single-market/en/news/conclusions-internet-things-public-consultation (accessed March 13, 2016).

  65. 65.

    ETNO, “The industrial internet needs broadband investment and the right regulation,” last modified 15 December 2015, retrieved at: http://www.politico.eu/sponsored-content/the-industrial-internet-needs-broadband-investment-and-the-right-regulation/ (accessed March 13, 2016).

  66. 66.

    Which is accompanied by a striking rhetoric shift in the framing of the pros and cons of the digital future towards an extremely optimistic view even by EU functionaries in high positions: “The age of the digital nature[:] Connected objects of all sorts become autonomous and operate according to their designed purposes. Natural and cyborg interfaces link people with their hyper-connected environments and optimize their functionalities seamlessly like in a new stage of nature. The basic design is not hostile but rather intended to please the needs and preferences of individuals.” Peter Friess, Rolf Riemenschneider, “New Horizons for the Internet of Things in Europe,” in Building the Hyperconnected Society: IoT Research and Innovation Value Chains, Ecosystems and Markets, ed. Ovidiu Vermesan, Peter Friess (Aalborg: River Publishers, 2015), 6.

  67. 67.

    Santucci, “Privacy in the Digital Economy,” 11–13.

  68. 68.

    European Commission: A Digital Single Market Strategy for Europe. See also, European Council‚“Compact for Growth and Jobs,” EUCO 76/12 (Brussels, 29 June 2012).

  69. 69.

    Florian Sprenger, Christoph Engemann, „Im Netz der Dinge: Zur Einleitung,“ in Internet der Dinge: Über smarte Objekte, intelligente Umgebungen und die technische Durchdringung der Welt, ed. Florian Sprenger, and Christoph Engemann (Bielefeld: transcript Verlag, 2015), 45. Geert Loovink, “Hermes on the Hudson: Notes on Media Theory after Snowden,” e-flux journal #54, (04/2014).

  70. 70.

    Mary Meeker, “Liang Wu, Internet Trends D11 Conference,” 29.05.2013, retrieved at: http://www.kpcb.com/blog/2013-internet-trends (21.03.2016).

  71. 71.

    Manuel Castells, The Power of Identity, The Information Age: Economy, Society, and Culture, Volume 2 (Malden: Wiley-Blackwell, 2010), 303.

  72. 72.

    Tim O’Reilly, “Open Data and Algorithmic Regulation,” in Beyond Transparency: Open Data and the Future of Civic Innovation, ed. Brett Goldstein, and Lauren Dyson (San Francisco: Code for America Press, 2013).

  73. 73.

    Besides data from public datasets (administrative (open) data and statistics about populations, economic indicators, education, etc.), data from social media, sensors and mobile phones are being increasingly used by policymakers at various levels all over the globe. See: Martijn Poel, et al., “Data for Policy: A Study of Big Data and Other Innovative Data-Driven Approaches for Evidence-Informed Policymaking,” Report about the State-of-the-Art, (Amsterdam: technopolis, Oxford Internet Institute, Center for European Policy Studies, 2015).

  74. 74.

    Parmy Olson, “The Quantified Other: Nest and Fitbit Chase a Lucrative Side Business,” Forbes, Issue 05.05.2014, Accessed March 22, 2016, http://www.forbes.com/sites/parmyolson/2014/04/17/the-quantified-other-nest-and-fitbit-chase-a-lucrative-side-business/#41b161d45403.

  75. 75.

    Evgeny Morozov, “The rise of data and the death of politics,” The Guardian, Issue 20.07.2014, accessed March 22, 2016, http://www.theguardian.com/technology/2014/jul/20/rise-of-data-death-of-politics-evgeny-morozov-algorithmic-regulation.

Bibliography

  1. Article 29 Working Party. “Working document on data protection and privacy implications in eCall initiative.” Opinion 125. Adopted on September 26, 2006.Google Scholar
  2. Augsberg, Ino. „Charta der Grundrechte der Europäischen Union (GRC).“ In Europäisches Unionsrecht: Vertrag über die Europäische Union - Vertrag über die Arbeitsweise der Europäischen Union - Charta der Grundrechte der Europäischen Union, Kommentar, vol. 7, edited by Hans von der Groeben, Jürgen Schwarze, and Armin Hatje. Baden-Baden: Nomos, 2015.Google Scholar
  3. Benhamou, Bernard. “Organizing Internet Architecture.” (Esprit, May 2006), 14. Accessed March 5, 2016 http://www.netgouvernance.org/esprit-eng.pdf.
  4. Bergmann, Jan. Handlexikon der Europäischen Union. Baden-Baden: Nomos, 2015.Google Scholar
  5. Castells, Manuel. “Information Technology, Globalization and Social Development.” UNRISD Discussion Paper No. 114, UN Research Center, September 1999: 8. Accessed March 8, 2016, http://www.unrisd.org/unrisd/website/document.nsf/ab82a6805797760f80256b4f005da1ab/f270e0c066f3de7780256b67005b728c/$file/dp114.pdf.
  6. Castells, Manuel. The Power of Identity, The Information Age: Economy, Society, and Culture, Volume 2. Malden: Wiley-Blackwell, 2010, 303.Google Scholar
  7. Communication from the Commission to the Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. Radio Frequency Identification (RFID) in Europe: steps towards a policy framework. Com(2007) 96 final (2007). Brussels, 15 March 2007.Google Scholar
  8. Communication from the Commission to the Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. Internet of Things – An action plan for Europe. COM(2009) 278 final. Brussels, 18 June 2009.Google Scholar
  9. Communication from the Commission to the Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. A Digital Single Market Strategy for Europe, SWD(2015) 100 final. Brussels, 6 May 2015.Google Scholar
  10. “eCall – Do you have any concerns for your privacy? You shouldn’t….” Newsroom Editor, European Commission. Accessed March 7, 2016: https://ec.europa.eu/digital-single-market/en/news/ecall-%E2%80%93-do-you-have-any-concerns-your-privacy-you-shouldnt.
  11. Eisenstein, Elisabeth. “The Printing Press as an Agent of Change: Communications and Cultural Transformations in Early Modern Europe.” (2 Vols. ed.). Cambridge (UK): Cambridge University Press, 1979.Google Scholar
  12. ETNO. “The industrial internet needs broadband investment and the right regulation.” Last modified 15 December 2015. Retrieved at: http://www.politico.eu/sponsored-content/the-industrial-internet-needs-broadband-investment-and-the-right-regulation/ (accessed March 13, 2016).
  13. European Commission Information Society and Media Directorate-General. Meeting Minutes of IoT Expert Group of 19 November 2010. Retrieved at: http://ec.europa.eu/transparency/regexpert/index.cfm?do=groupDetail.groupDetailDoc&id=7556&no=3 (accessed March 25 2016).
  14. European Commission Press Release. eCall: automated emergency call for road accidents mandatory in cars from 2015. Brussels, 13 June 2013.Google Scholar
  15. European Council. Compact for Growth and Jobs. EUCO 76/12, Brussels, 29 June 2012., 7–15.Google Scholar
  16. European Parliament. Report on the Internet of Things. A7–0154/2010, Rapporteur: Maria Badia I Cutchet. 10 May 2010.Google Scholar
  17. Friess, Peter, and Rolf Riemenschneider. “New Horizons for the Internet of Things in Europe.” In Building the Hyperconnected Society: IoT Research and Innovation Value Chains, Ecosystems and Markets, edited by Ovidiu Vermesan, Peter Friess, 5–13. Aalborg: River Publishers, 2015.Google Scholar
  18. Ghiglieri, Marco. “I Know What You Watched Last Sunday A New Survey Of Privacy In HbbTV.” Workshop Web 2.0 Security & Privacy 2014 in conjunction with the IEEE Symposium on Security and Privacy, 2014.Google Scholar
  19. Greenfield, Adam. Everyware: The dawning age of ubiquitous computing. Berkeley: New Riders Publishing, 2006.Google Scholar
  20. Kühling, Jürgen. „Der Fall der Vorratsdatenspeicherungsrichtlinie und der Aufstieg des EuGH zum Grundrechtsgericht.“ NVwZ (2014), 681–685.Google Scholar
  21. Latour, Bruno. “Where Are the Missing Masses? The Sociology of a Few Mundane Artifacts.” in Shaping Technology/Building Society. Studies in Sociotechnical Change, edited by Wiebe E. Bijker, and John Law, 225–259. Cambridge/US: MIT Press, 1992.Google Scholar
  22. Latour, Bruno. Reassembling the Social: An Introduction to Actor-Network Theory. New York: Oxford University Press, 2005.Google Scholar
  23. Loovink, Geert. “Hermes on the Hudson: Notes on Media Theory after Snowden.” e-flux journal #54, (04/2014).Google Scholar
  24. Lüdemann, Volker, and Sengstacken, Christin. „Lebensretter eCall: Türöffner für neue Telematik-Dienstleistungen.“ RDV 2014, 177–183.Google Scholar
  25. Molina-Markham, Andrés, et al. “Private memoirs of a smart meter.” Proceedings of the 2nd ACM workshop on embedded sensing systems for energy-efficiency in building. ACM, 2010.Google Scholar
  26. Morozov, Evgeny. “The rise of data and the death of politics.” The Guardian, Issue 20.07.2014. Accessed March 22, 2016, http://www.theguardian.com/technology/2014/jul/20/rise-of-data-death-of-politics-evgeny-morozov-algorithmic-regulation.
  27. “New EC Expert Group on the Internet of Things.” EDRi. Last modified October 6, 2010. https://edri.org/edrigramnumber8-19expert-group-rfid-iot/ (accessed March 13, 2016).
  28. Nissenbaum, Helen. Privacy in Context: Technology, Policy, and the Integrity of Social Life. Stanford: Stanford University Press, 2010.Google Scholar
  29. O’Reilly, Tim. “Open Data and Algorithmic Regulation.” In Beyond Transparency: Open Data and the Future of Civic Innovation, edited by Brett Goldstein, and Lauren Dyson, 289–301. San Francisco: Code for America Press, 2013.Google Scholar
  30. Oettinger, Günther. “Von 0:4 zu 4.0: Wenn Europa mit Amerika mithalten will, braucht es eine digitale Strategie.” Zeitschrift IP - Internationale Politik, July/August (2015): 20–25.Google Scholar
  31. Olson, Parmy. “The Quantified Other: Nest and Fitbit Chase a Lucrative Side Business.” Forbes, Issue 05.05.2014. Accessed March 22, 2016, http://www.forbes.com/sites/parmyolson/2014/04/17/the-quantified-other-nest-and-fitbit-chase-a-lucrative-side-business/#41b161d45403.
  32. “Opinion of the European Data Protection Supervisor on Promoting Trust in the Information Society by Fostering Data Protection and Privacy.” EDPS, 19.03.2010. Accessed March 5, 2016 https://secure.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/Consultation/Opinions/2010/10-03-19_Trust_Information_Society_EN.pdf.
  33. “Opinion of the EDPS on the proposal for a Regulation of the European Parliament and of the Council concerning type-approval requirements for the deployment of the eCall system and amending Directive 2007/46/EC.” EDPS. Accessed March 14, 2016 http://www.europarl.europa.eu/document/activities/cont/201311/20131128ATT75138/20131128ATT75138EN.pdf.
  34. Poel, Martijn, et al. “Data for Policy: A Study of Big Data and Other Innovative Data-Driven Approaches for Evidence-Informed Policymaking.” Report about the State-of-the-Art. Amsterdam: technopolis, Oxford Internet Institute, Center for European Policy Studies, 2015.Google Scholar
  35. Regulation (EU) 2015/758 of the European Parliament and of the Council of 29 April 2015 concerning type-approval requirements for the deployment of the eCall in-vehicle system based on the 112 service and amending Directive 2007/46/EC (“eCall regulation“).Google Scholar
  36. “RFID and Informed Consent – Using and Removing RFID Functionality.” EDRi, last modified December 5, 2007. https://edri.org/edrigramnumber5-23rfid-informed-consent/ (accessed March 13, 2016).
  37. Rhees, Garath. “The hidden dangers of cycling.” garethreeds.org, last modified January 10, 2012. Accessed February 29, 2016. http://garethrees.org/2012/01/10/shadwell/.
  38. Santucci, Gérald. “The Internet of Things: The Way Ahead.” In Internet of Things - Global Technological and Societal Trends from Smart Environments and Spaces to Green ICT, edited by Ovidiu Vermessan, Peter Friess, 53–98. Aalborg: River Publishers, 2011.Google Scholar
  39. Santucci, Gérald. “Towards Connectobjectome: The age when the totality of all objects become connected.” In The Internet of Things 2012: New Horizons, edited by Ian G Smith, 8–12. Halifax: Platinum Print, 2012.Google Scholar
  40. Santucci, Gérald. “Privacy in the Digital Economy: Requiem or Renaissance? An essay on the future of privacy.” The Privacy Surgeon. September 2013. http://www.privacysurgeon.org/blog/wp-content/uploads/2013/09/Privacy-in-the-Digital-Economy-final.pdf (accessed March 25 2016).
  41. Schivelbusch, Wolfgang. The railway journey: The industrialization of time and space in the nineteenth century. Oakland: University of California Press, 2014.Google Scholar
  42. Schüttpelz, Erhard. „Ein absoluter Begriff. Zur Genealogie und Karriere des Netzwerkbegriffs.“ In Vernetzte Steuerung: Soziale Prozesse im Zeitalter technischer Netzwerke, ed. Stefan Kaufmann, 25–46. Zürich: Chronos, 2007.Google Scholar
  43. Simmel, Georg. “The Metropolis and Mental Life.” In The Blackwell City Reader, edited by Gary Bridge, and Sophie Watson, 103–110. Chichester: Wiley Blackwell, 2010.Google Scholar
  44. Sprenger, Florian, and Christoph Engemann. „Im Netz der Dinge: Zur Einleitung.“ In Internet der Dinge: Über smarte Objekte, intelligente Umgebungen und die technische Durchdringung der Welt, edited by Florian Sprenger, and Christoph Engemann, 7–58. Bielefeld: transcript Verlag, 2015.Google Scholar
  45. Stäheli, Urs. “Aus dem Rhythmus fallen. Zur öffentlichen Entnetzung.“ In Kursbuch 177: Privat 2.0, 66–77, 2013.Google Scholar
  46. Tonkiss, Fran. “The Ethics of Indifference: Community and Solitude in the City.” International Journal of Cultural Studies 6, No. 3 (2003): 297–311.CrossRefGoogle Scholar
  47. Zuboff, Shoshana. “Big other: surveillance capitalism and the prospects of an information civilization.” Journal of Information Technology 30(1) (2015): 75–89.CrossRefGoogle Scholar

Copyright information

© Springer International Publishing AG 2017

Authors and Affiliations

  • Murat Karaboga
    • 1
  • Tobias Matzner
    • 2
  • Hannah Obersteller
    • 3
  • Carsten Ochs
    • 4
  1. 1.Fraunhofer Institute for Systems and Innovation ResearchKarlsruheGermany
  2. 2.Internationales Zentrum für Ethik in den WissenschaftenUniversität TübingenTübingenGermany
  3. 3.Unabhängiges Landeszentrum für Datenschutz Schleswig-HolsteinKielGermany
  4. 4.Universität Kassel Fachbereich 05 Soziologische TheorieKasselGermany

Personalised recommendations