Digital Native Privacy (Francesca Bosco & Giuseppe Vaciago)
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This document explores the attitudes of digital natives towards data protection and privacy, emphasizing the challenges and generational differences in understanding online safety. It argues that current legislative measures are insufficient and suggests a re-evaluation of privacy from an ethical perspective. The authors highlight that digital natives often overlook the risks of sharing personal information online, leading to potential harm in their digital identities.
Digital Native Privacy (Francesca Bosco & Giuseppe Vaciago)
- 1. © by Tech and Law Center – www.techandlaw.net 1 Privacy of the Digital Natives Francesca Bosco1 and Giuseppe Vaciago2 May, 2012 Abstract Even if the term “digital native” have been debated for years by several esteemed scholars, this ar- ticle aims to seek the digital natives’ attitude towards data protection and safety. It is fundamental, in a society which is evolving so fast, not to focus solely on the present, but to endeavour to improve the future by paying the utmost attention to the new generations. What balance of interests must we achieve between privacy vs transparency, secrecy vs security, reputation vs freedom of expression in a world of Internet which is increasingly regulated by Moore’s Law, rather than by State legisla- tion? The purpose is to analyze the current tension between privacy and other fundamental rights from a predominantly legal standpoint, pointing out that the solutions adopted by legislation and case law are not sufficient and that maybe it is also necessary to reconsider this value from an ethi- cal viewpoint. Table of Content 1. Digital natives’ and Digital Immigrant........................................................................................ 2 2. Privacy in the third millennium................................................................................................... 4 3. Regulating global privacy ........................................................................................................... 5 4. Conclusions.................................................................................................................................. 7 1 Francesca Bosco obtained her law degree from Università degli Studi di Torino, with a focus on International Law and was a practicing attorney for two years before joining UNICRI in 2006 as a member of the Emerging Crimes Unit. Her role in this organization is to be responsible for the cybercrime preven- tion projects, and in conjunction with key strategic partners, has developed new methodologies and strategies for researching and countering computer re- lated crimes. She began collaborating information on different cybercrime-related projects such as the Hackers Profiling Project (HPP), SCADA (Supervisory Control and Data Acquisition) Security and a multi-level training program for ICT and security professionals, lawyers, and law enforcement agencies. Ms. Bosco also participated as a speaker in various conferences and training seminars on the topic of child online pornography and contributed to the develop- ment ITU Child Online Protection (COP) guidelines.More recently Ms. Bosco is researching and developing technical assistance and capacity building pro- grams to counter the involvement of organized crime in cybercrime and a methodology with which to ascertain the social and financial ramifications of cy- bercrime and online abuse.She is member of the TLC Executive Committee. 2 Giuseppe Vaciago has been a lawyer and a member of the Milan Bar since 2002 and for the last 10 years his primary focus has been IT Law with a focus on cyber crime. He has assisted many national and international IT companies. Academically, he received his PHD on Digital Forensics from Università di Milano and he is a lecturer at Insubria University (Varese and Como) where he holds a course on IT law. He recently attended Fordham Law School and Stanford Law School as a ‘Visiting Scholar’ to expand his studies in his own particular research area. Giuseppe Vaciago is the author of many publications on cybercrime, including both scientific journals and textbooks, which have been adopted by the University where he teaches. He has also delivered many lec- tures and presentations in both Italy and abroad.He is member of the TLC Executive Committee.
- 2. © by Tech and Law Center – www.techandlaw.net 2 1. Digital natives’ and Digital Immigrant The terms “digital native” and “digital immi- grant” were coined in 2001 by Marc Prensky3 , but they are slowly becoming ubiquitous amongst scholars and activists working in the youth-technology sector, especially in emerg- ing Information Societies. “Digital native” is generally used to differentiate the generation that was born after 1980 – who has an un- precedented (and often inexplicable) relation- ship with information technology4 . The distinc- tion between digital natives and digital immi- grants is controversial, not least because the digital universe currently inhabited by digital natives was in fact conceived and created by digital immigrants. Generational differences are seen as the cause of wide shifts in our ability to engage with technologies and the concept of the digi- tal native has gained popularity in certain are- as of policy and practice. But generation is only one of the predictors of advanced inter- action with the Internet. Breadth of use, expe- rience, gender and educational levels are also important, indeed in some cases more im- portant than generational differences, in ex- plaining the extent to which people can be de- fined as a digital native. Helsper and Eynon’s study suggests that it is possible for adults to become digital natives, especially in the area of learning, by acquiring skills and experience in interacting with information and communi- cation technologies5 . Ten years after Prensky’s definition, White and Le Cornu proposed the terms ‘Visitors’ and ‘Residents’6 as a replacement for Pren- 3 Prensky Marc, Digital Natives, Digital Immigrants, From On the Hori- zon, MCB University Press, Vol. 9 No. 5, 2001 available at: http://www.marcprensky.com/writing/Prensky%20- %20Digital%20Natives,%20Digital%20Immigrants%20-%20Part1.pdf. 4 There are many critical voices caution against presuming that all those born after the advent of the Internet are Digital Natives. Shah, Nishant and Abraham, Sunil, Digital Natives With A Cause?, Centre for Internet and Society, 2009, available at: http://cis-india.org/digital- natives/blog/uploads/dnrep1); Bennett, Sue, Maton, Karl and Kervin, Lisa, The “Digital Natives” Report: A Critical Review of the Evidence’, British Journal of Educational Technology, 2008, available at http://kimhuett.wiki.westga.edu/file/view/The-digital-natives-debate-A- critical-review-of-the-evidence.pdf). 5 Helsper, Ellen Johanna and Eynon, Rebecca, Digital natives: where is the evidence?, British Educational Research Journal, 2010, Vol. 36, 503. 6 White, S. David and Le Cornu, Alison, ‘Visitors and Residents: A New Typology for Online Engagement’, First Monday, Vol 16 No 9, 2011, available at: http://firstmonday.org/htbin/cgiwrap/bin/ojs/index.php/fm/article/view/317 1/3049. sky’s much‐criticised digital natives and digital immigrants. The new approach wanted to rep- resent people behaving in different ways when using technology, depending on their motivation and context, without categorising them according to age or background. The proposed typology should be understood as a continuum and not a binary opposition. Indi- viduals may be able to place themselves at a particular point along this continuum rather than in one of two boxes. Zur said that “By age 20, kids will have spent 20,000 hours online –the same amount of time a professional piano player would have spent practicing”7 . According to Born Digital8 , “Many Digital Natives incorrectly perceive that their conversations online are far more private than they are. In other words, there is a new incentive to post information about yourself online (social norms suggest that more information about yourself will attract more friends), but less of a check on your behaviour (an innate sense of privacy, or someone telling you “don’t you dare go out dressed like that”). The result is that at no time in human history has information about a young person been more freely and publicly accessible to so many others”. Our privacy is becoming “liquid”: we publish and use, in a networked environment, ex- tremely valuable data, of which we quickly lose availability. These data after some time can become harmful. While personal identity offline is characterized by a unitary base that makes it immune to selective cuts, the digital identity is by definition exposed to the inevita- ble fragmentation and contingency of traces, paths and preferences that characterize surf- ing on the web: within the multiplicity and fragmentation, the common denominator of our own digital life is the crucial position occu- pied by the user’s personal and sensitive da- ta. Another issue that comes to mind when dis- cussing youth and media is the issue of online 7 Zur, Ofer and Zur, Azzia Psychology of the Web & Internet Addiction, Zur Institute, 2011, available at http://www.zurinstitute.com/Internetaddiction.html. 8 Gasser, Urs, Palfrey, John, Born Digital - Understanding the First Gen- eration of Digital Natives, Perseus Publishing, 2008.
- 3. © by Tech and Law Center – www.techandlaw.net 3 safety9 . The public spaces in which young people interact have expanded. Much of the social life of young people takes place in a converged space that links the online and the offline. These new public spaces are often held in private hands, by corporations like Fa- cebook, Google, MySpace, and many others. In the process of dismantling the boundaries between the public and the private10 , often youngsters put themselves in grave danger, not only in their immediate present but also in their unsuspecting futures. Youth tend to fo- cus more on the potential benefits of infor- mation disclosure than they do on potential harms11 . Despite having knowledge and in- formation, digital natives tend to forget their online safety and privacy rights – a phenome- non that Mayer- Schoenberger calls ‘the art of forgetting in the age of ubiquitous compu- ting’12 . It is ascertained that young people share too much information about themselves online. The Internet’s capacity to archive identities in a way that permanently records everything ever expressed online often leads to embar- rassing stories and personal information being laid bare to public scrutiny. As Palfrey, Gasser and Boyd stated, “we fret over an erosion of the reasonable expectation of privacy in the online environment”13 . The general public welcomes even ordinary changes in the privacy policy and terms of service at large social network sites such as Facebook. But then real behaviour is different. Gross and Acquisti further examined how in- dividuals disclose information and protect pri- vacy on Facebook, finding that most users share personal information openly and few 9 Gasser, Urs, Maclay, Colin M. and Palfrey, John G., Working Towards a Deeper Understanding of Digital Safety for Children and Young People in Developing Nations (June 21, 2010). Berkman Center Research Publication No. 2010-7; Harvard Public Law Working Paper No. 10-36. Available at http://ssrn.com/abstract=1628276. 10 Boyd, Dana Michele, Taken Out of Context: American Teen Sociality in Networked Publics. Doctoral Dissertation, University of California, Berkeley, Available at: http://www.danah.org/papers/TakenOutOfContext.pdf. 11 Santo, R., James, C., Davis, K., Lee Katz, S., Burch, L., & Joseph, B., Meeting of Minds: CrossGenerational Dialogue on the Ethics of Digital Life. A report in collaboration of Global Kids, Common Sense Media & GoodPlay Project at Harvard University, 2009. 12 Mayer-Schoenberger, Viktor, Delete: The Virtue of Forgetting in the Digital Age, Princeton University Press, 2009. 13 Palfrey, John G., Gasser, Urs and Boyd, Danah, Response to FCC Notice of Inquiry 09-94: Empowering Parents and Protecting Children in an Evolving Media Landscape, Berkman Center Research Publication No. 2010-02; Harvard Public Law Working Paper No. 10-19. Available at: http://ssrn.com/abstract=1559208. modify their default privacy settings for in- creased protection14 . Many young people do care about privacy and their personal reputations15 . But often, they lack sufficient skills and tools to keep pri- vate from others data they wish to protect. From the Eurobarometer16 , it is possible to evince that around 94% of those aged 15-24 use Internet (EU 66%). 84% of them use so- cial networking sites (EU 52%) and 73% of them use websites to share pictures, videos, movies (EU 44%). They are the most likely to agree that disclosing personal information is not a big issue for them (43%, EU 33%), that they do not mind disclosing personal infor- mation in return for free services online such as a free email address (48%, EU 29%), and that they feel obliged to disclose personal in- formation on the Internet (41%, EU 28%). They are also most likely to disclose various types of personal information on social net- working sites, and to disclose personal infor- mation on social networking sites ‘for fun’ (26%, EU 22%); they usually do not read pri- vacy statements on the Internet (31%, EU 25%), but they feel sufficiently informed about the conditions for data collection and the fur- ther uses of their data when joining a social networking site or registering for a service online (64%, EU 54%); they are likely to have changed their personal profile from the default settings on a social networking site or sharing site (62%, EU 51%); and they tend to hold the social networking or sharing sites responsible for the safe handling of data. They are also more likely to feel that they have control over the information disclosed on social networking or sharing sites (84%, EU 78%) and over the information on online shopping websites (80%, EU 68%). Equally, the care-free digitals are the least likely to mention the risk that their information 14 Gross, Ralph and Acquisti, Alessandro, Information Revelation and Privacy in Online Social Networks (The Facebook Case)’, in Proceed- ings of ACM Workshop on Privacy in the Electronic Society, 2005, avail- able at: http://www.heinz.cmu.edu/~acquisti/papers/privacy-facebook- gross-acquisti.pdf. 15 Youn, Seounmi, Determinants of Online Privacy Concern and Its Influ- ence on Privacy Protection Behaviors Among Young Adolescents, The Journal of Consumer Affairs, 2009, available at: http://onlinelibrary.wiley.com/doi/10.1111/j.1745-6606.2009.01146.x/full. 16 Data taken from Special Eurobarometer 359, Attitudes on Data Pro- tection and Electronic Identity in the European Union, European Com- mission, 2011, available at: http://ec.europa.eu/public_opinion/archives/ebs/ebs_359_en.pdf.
- 4. © by Tech and Law Center – www.techandlaw.net 4 may be used to send them unwanted com- mercial offers (24%, EU 28%); to say that the websites will not honour the privacy state- ments (20%, EU 24%); to protect their identi- ty, either in daily life or on the Internet; or to be concerned that the information about them held by companies may be used for a differ- ent purpose from that for which it was collect- ed (63%, EU 70%). 2. Privacy in the third millennium The above-mentioned European Commission report reveals that digital natives care little about the possible consequences of posting their own or others' data on Internet; neither do they care where such data is really stored. The exponential growth in cloud computing systems is a clear demonstration of the fact that saving money and ease-of-use are more important than the choice to ensure greater control of one's own personal data. Amongst the possible reasons for this lack of sensitivity and respect for privacy, two stand out: the first is the speed with which Internet has developed. Managing such a rapid pro- cess involving the transformation of Internet has made it impossible to put in place a sys- tem of technical and legal rules capable of properly protecting users' privacy17 . The se- cond reason is the fact that Internet, possibly due to the very speed with which it has devel- oped, is a technology which is run almost ex- clusively by the private sector. National gov- ernments began showing interest in Internet too late. Vint Cerf remarks that18 : “The Internet has introduced an enor- mously accessible and egalitarian platform for creating, sharing and obtaining infor- mation on a global scale. As a result, we have new ways to allow people to exercise their human and civil rights. In this context, engineers have not only a tremendous ob- ligation to empower users, but also an ob- ligation to ensure the safety of users online”. 17 Only after 2009 was the concept of Privacy by Design introduced. Cavoukian, Ann, Privacy by Design, The 7 Foundational Principles, Available at http://www.ipc.on.ca/images/resources/7foundationalprinciples.pdf. 18 Cerf, Vint, Internet Access Is Not a Human Right, New York Times, January 4 2012, http://www.nytimes.com/2012/01/05/opinion/Internet-access-is-not-a- human-right.html. In addition to the great importance that Cerf correctly attributes to engineers, the fact that the IT world is now in the hands of a limited number of companies is just as significant; the majority of these companies are headquar- tered in Silicon Valley. As we will see in the next paragraph, the concentration of so many companies within such a limited geographical area, also explains why it is difficult for the public sector, including the courts, even at an international level, to understand and thus to "regulate" the Internet. In this context, the future of privacy will cer- tainly depend on the role given to two values which are of key importance for every demo- cratic system, but which may potentially clash with the right to privacy: individuals' freedom of expression and safety. Before the advent of Internet, the freedom of expression, though recognised virtually as an inalienable right of every person, was highly restrained and consequently filtered by the existing media. The press, television and ra- dio are tools which only allow communication for those who control them19 . As Italians, we all know just how strategic it is to have this type of control20 . Internet has made it possible for anybody to open a blog or a profile on a social network without any territorial or economic restrictions; the consequences can sometimes be harmful for the quality of such information21 ; however, there is no doubt that freedom of expression is absolutely defended. Rosen notes: “The sociologist Thomas Mathiesen has contrasted Michel Foucault’s Panopticon – a surveillance house in which the few watched the many – with what he called the “Synopticon” created by modern televi- sion, in which the many watch the few. But in the age of the Internet, we are experi- encing something that might be called the “Omnipticon” in which the many are watch- 19 Rosen, Jeffrey, The Naked Crowd Reclaiming Security and Freedom in an Anxious Age, Florida State Law University, 2004, available at http://www.law.fsu.edu/faculty/2003-2004workshops/rosen.pdf 20 European Court of Human Right, Application no. 38433/09 - Centro Europa 7 S.R.L. v. Italy, Written Comments of the Open Society Justice Initiative, available at: http://www.soros.org/initiatives/justice/litigation/europa7/written- comments-20100311.pdf. 21 Morozov, Eugeny, The Net Delusion. The Dark Side of Internet Free- dom, Public Affairs, New York, 2011, p. 253.
- 5. © by Tech and Law Center – www.techandlaw.net 5 ing the many, even though no one knows precisely who is watching or being watched at any given time”. In addition, it should be borne in mind that un- like television, Internet "does not forget". For this reason there is now the need to provide for the right to be forgotten. Using convincing arguments in his book “Delete,” Schönberger proposes to re-establish the ordinary balance between memory and forgetfulness: in which the former is once more the exception and the latter the rule22 . Eric Schmidt (CEO of Google Inc.) objects to this approach, commenting “if you have something that you don't want any- one to know, maybe you shouldn't be doing it in the first place” 23 . Beyond the conflict between freedom of ex- pression and right to be forgotten, the infor- mation digitalisation process has given rise to other unforeseeable phenomena: first, Julian Assange and the “Wikileaks” case have demonstrated that it is increasingly difficult to keep information which is essential for nation- al security secret; secondly, the enormous flow of information circulating on the Internet is very appealing to the world's governments who see the opportunity to ensure the security of their State through increasingly sophisticat- ed forms of dataveillance24 . The argument used to legitimise this form of monitoring is very similar to the one used to protect freedom of speech: the US has de- clared in one of its campaigns on security that “if you’ve got nothing to hide, you’ve got noth- ing to fear” 25 . In his long essay designed to refute the “nothing to hide” argument, Solove maintains that indiscriminate collection of a citizen’s personal and sensitive data by a State authority, may seriously harm the citizen in the event of loss and concurrent dispersal of data or, above all, in case of incorrect eval- uation of such data. He also observes that the future will not be an Orwellian Big Brother, but 22 Mayer-Schoenberger, Viktor, Delete. The Virtue of Forgetting in the Digital Age, Princeton University Press, 2010. 23 Jennings, Richi, Google CEO: if you want privacy, do you have some- thing to hide?, in ComputerWorld, December 11, 2009 available at: http://blogs.computerworld.com/15234/google_ceo_if_you_want_privacy _do_you_have_something_to_hide. 24 Clarke, Roger, Information Technology and Dataveillance, 1991, available at: http://www.rogerclarke.com/DV/CACM88.html. 25 Solove, Daniel, Nothing to Hide: The False Tradeoff between Privacy and Security, Yale University Press, 2011, p. 21. will more closely resemble the future de- scribed by Kafka in his Metamorphosis, as we will increasingly come to rely on information over which we lose control and which may be used against us at the opportune time. This is the privacy paradox of the third millen- nium: on the one hand, public authorities should regulate Internet more efficiently, pay- ing particular attention to digital natives’ priva- cy. On the other hand, it is feared that these public authorities may conduct unlawful moni- toring, supposedly with a view to protecting citizens' national security. 3. Regulating global privacy The fact that a handful of California-based companies control around 2.3 billion users (1.7 billion Google, 835 million, Facebook, 600 million Twitter26 ) does not facilitate the process of harmonising European and Cana- dian privacy legislation with the American one. Larry Page’s polite refusal to comply with the request made by the Article 29 Working Party to postpone amendments to Google's privacy policy in Europe is a clear example of the difficulties encountered by States to regain their traditional regulatory and coercive pow- ers. In this case too, amongst the possible rea- sons for this difficulty, two stand out. The first is that Europe, (to which Canada can be associated on grounds of cultural affinity) and United States have two very distinct con- cepts of privacy. For insight into the reasons underlying this difference in approach, one needs to consider that the data protection laws adopted by the German Land of Hessen in 197027 , followed by Sweden in 197328 , the Federal Republic of Germany in 197729 and France in 197830 , as well as the European Di- 26 Stats available at: http://www.Internetworldstats.com/facebook.htm and http://twopcharts.com/twitter500million.php, last update March 31, 2012. 27 Datenschutzgesetz (Data Protection Act) of 1970, available (in Ger- man) at: http://www.datenschutz.rlp.de/downloads/hist/ldsg_hessen_1970.pdf . 28 The Data Act, 1973 available at: http://archive.bild.net/dataprSw.htm. 29 Bundesdatenschutzgesetz (BDSG) [Federal Data Protection Act) of 1977, available in English at: http://www.iuscomp.org/gla/statutes/BDSG.htm. 30 Loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés, available (in French) at: http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=LEGITEXT00000 6068624&dateTexte=20101103 .
- 6. © by Tech and Law Center – www.techandlaw.net 6 rectives 95/46/EC, 2002/19-20-21/EC, 2006/24/EC and 2009/140/EC, are all based on the same groundwork: the European Con- vention on Human Rights (ECHR). Although Article 8 of the ECHR entrenches the principle that “everyone has the right to respect for his private and family life, his home and his correspondence”, unlike the Fourth Amendment of the U.S. Constitution, the second paragraph of the cited article seems to accept with far greater “resignation” possible interference by public authorities in the exercise of this right, to the extent “neces- sary in a democratic society in the interests of national security, public safety or the econom- ic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”31 . According to Whitman, the conflict between the Fourth Amendment set forth in the Bill of Rights, and Article 8 of the ECHR bears wit- ness to the very different approaches to pri- vacy that have developed on the opposite sides of the Atlantic as a result of profoundly divergent ideologies, with the emphasis being placed on freedom in the U.S. and on human dignity in Europe32 . These distinct ideologies arose as a by- product of the history of each continent. In Europe, where for centuries dignity had been the preserve of the aristocracy, the craving to extend its benefits to all became the driving force behind the social struggles of the past two centuries, whilst on the other side of the Atlantic, it was the libertarian push for free- dom that led to the American revolution and laid the groundwork for the U.S. legal system. European data protection laws tend to safe- guard personal privacy against what is per- ceived as its greatest threat, and that is to say, above all, the media and the dangers posed by the information society with the 31 This is clearly illustrated in the case Leander v. Sweden (European Court of Human Rights, decision dated March 26, 1987, 9 EHRR 433, paragraph 59) in which it was held that a person who was denied securi- ty clearance for a job at a Naval Museum on the basis of information contained in secret police files that were not made available to him, did indeed sustain prejudice to his rights pursuant to Article 8(1) of the ECHR, but was not entitled to any remedy since his rights had been violated in pursuit of a legitimate aim under Article 8(2) of the ECHR, and that is to say, the protection of national security. 32 J. WHITMAN, The two western cultures of privacy: Dignity v. Liberty, in The Yale Law Journal, vol. 113, no. 6, at page 1151. emergence of new technologies. In the U.S. on the other hand, privacy laws are designed to protect the inviolability of private premises against what Americans perceive as most menacing to their personal affairs, i.e. gov- ernment intrusion. More trusting in tate power than their U.S. counterparts, Europeans have fewer qualms about surrendering some of their personal freedom to the government, although they are highly intolerant of any intrusion by the media, old or new. Americans, on the other hand, take the Jeffersonian33 view of freedom of the press as a basic constitutional value, but they have no taste for European bureau- cracy that can interefere also with the names parents may give their new-born children. Europeans are at a loss to comprehend the leeway enjoyed by U.S. banks to conduct credit checks on their customers, and find it difficult to countenance the cordial straight- forwardness with which their American friends inquire about how much they earn. For Americans, mandatory identity cards are unacceptable, quite like the nonchalant nudity in which certain European celebrities indulge (clothes being the last frontier of the “home”). The second reason is that the remedies put forward to harmonise privacy in Europe and the United States have so far not obtained any particularly effective result. As Zimmer correctly observes, the 2000 Safe Harbor Agreement between Europe and the United States 34 is a clear example: “While U.S. based companies are forced to provide more privacy protections than U.S. law demands, the Safe Harbor provisions are weaker than the full European Directive on Data Protection.” The new European privacy regulations35 offer interesting food for thought, including the in- 33 “Our liberty cannot be guarded but by the freedom of the press, nor that be limited without danger of losing it” Thomas Jefferson, letter to John Jay, 1786. 34 2000/520/EC: Commission Decision of 26 July 2000 pursuant to Di- rective 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the safe harbour privacy princi- ples and related frequently asked questions issued by the US Depart- ment of CommerceEuropean Commission’s decision of 26 July 2000, no. 2000/520/EC, available at: http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000D0520:EN:H TML. 35 Regulation of the European Parliament and of The Council on the Pro- tection of Individuals with regard to the Processing of Personal Data and on the Free Movement of Such Data (General Data Protection Regula-
- 7. © by Tech and Law Center – www.techandlaw.net 7 troduction of a single piece of legislation for the entire European Union (as opposed to dif- ferent laws for each individual State) as well as a clearer, more coherent definition of “main establishment”. However, there is no shortage of controversy: for example, the United States’ attitude is diametrically opposed to the Euro- pean Union’s one on cookies. Users in the United States are entitled to refuse the use of cookies for marketing purposes, but they are not entitled to give prior consent. In any case, if and when the regulation becomes effective, much will have changed, considering the speed with which Internet evolves. 4. Conclusions The combination created both by the speed of Internet evolution and by the absence of the "State" has ushered in an expansion in the global exchange of information process, which has surely fostered liberty of expression to the detriment of privacy and other funda- mental rights. I am not convinced that the right balance can be found solely by entrusting private compa- nies with the task of managing this wealth of information; by the same token, I am not con- vinced that it is possible to obtain this result through robust regulatory activity by the State which could inevitably risk having a direct or indirect impact on the freedom of expression which Internet allows. Instead, I am of the opinion that it is funda- mental, in a society which is evolving so fast, to pay the utmost attention to the new genera- tions who are about to adopt Internet by providing an appropriate answer to the follow- ing questions: What will the balance of inter- ests be which must be achieved between pri- vacy vs transaparency, secrecy vs security, reputation vs freedom of expression in a world of Internet which is increasingly regulated by Moore’s Law, rather than by State legislation? I would not be so presumptuous as to claim to have the answer to such broad questions, questions which may have a dramatic impact on the world of Internet as we know it today. It is however beyond dispute that, ever since tion), 2012/0011 (COD), available at: http://ec.europa.eu/justice/data- protection/document/review2012/com_2012_11_en.pdf. Warren and Brandeis36 , the concept of privacy has been remodelled several times due to the relentless development of the information so- ciety. In this context, we have to bear in mind the guidelines provided by the Vice President of the European Commission Responsible for the Digital Agenda Online, Neelie Kroes, on the importance of promoting international agreements and providing incentives for self- regulatory mechanisms. Even if these guide- lines run the risk of providing weaker legal protection, they may certainly foster greater efficacy in the application of global privacy rules for digital natives and digital immi- grants37 . 36 Warren, Samuel and Brandeis, Louis, The Right to Privacy, in Harvard Law Review. Vol. IV, December 15, 1890, No. 5, available at: http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_br and_warr2.html. 37 Kroes, Neelie, Privacy: Reinforcing Trust and Confidence Online Tracking Protection & Browsers, Workshop Brussels, 22 June 2011, available at: http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/11/ 461.
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