1. Human beings who create data

Human beings create data every day.

How much data did you create today? Using an IC card at the train station you used, checking news on your smartphone while riding the train, exchanging emails with your coworkers, sending a message to your family, giving a Like to a photograph that your friend posted on SNS, searching the internet for information on a restaurant that you want to go to this weekend and a new product that you want to buy, checking location information when going to a new place, etc.

Nowadays, it is no exaggeration to say that we live in order to create data. Perhaps the data accumulated every day is more accurate record of our selves than even our own memories. In the world of big data, human beings exist as products that create data.

Nevertheless, most people are not aware of where that data is used or managed, who it is shared with, how long it is saved, and how it is analyzed.

Our privacy now faces a crisis. However, we must do more than simply engage in emotionally-charged arguments regarding unpleasant feelings towards our privacy; instead, it is important that we logically and clearly define what kind of privacy requires protection.

2. The future as indicated by data

Today’s data now enables us to predict tomorrow’s human beings with high probability.

For example, supermarkets in America analyze that, if a woman purchases body lotion, a large bag, health supplements, and a lap blanket in March, there is an 87% chance that the woman is pregnant and that her delivery date is in August. This data is analyzed to market baby products. There was an actual case in which coupons for baby clothing were sent to a high school girl for whom data analysis indicated a high probability of pregnancy. Only after receiving these coupons in the mail did her father notice her pregnancy.

In another example, the Chicago police used data to clarify who is the likeliest to kill and to be killed in the city. If data shows that a certain person often goes to a certain place during a time of day when there is a high possibility of murder occurring, that person will be warned by police.

Also, a data analysis company has analyzed the likes for SNS related to the American presidential election and the public vote on Brexit. It was reported that Trump’s election victory and the withdrawal of the United Kingdom from the EU was predicted based on the results of data analysis prior to the votes.

Genetic information is data that provides clues of predicting the talents, health risks, and other traits of people. If their genetic information, which is impossible for a person to change, is used in areas such as employment searches, hiring, and medical insurance, there may come a day in which society uses data to discriminate against certain people from the moment of their birth.

Data is gaining control of every aspect of human life, from shopping at a supermarket to public safety, democracy, and even one’s own future.

3. Dignity—Europe

In the past, the Nazis used punch cards to discover Jewish people trying to hide. Known as death’s calculator, these punch cards contained various kinds of personal information such as name, address, languages spoken, hair color, eye color, and skin color. The cards were used as a tool for discovering and conducting mass murder of Jewish people.

Europe has a bitter history of violating human dignity. Therefore, the protection of privacy and personal data has been positioned as an issue of human rights guaranteed by the Charter of Fundamental Rights of the European Union. The EU General Data Protection Regulation (GDPR) that will enter into force on May 25, 2018 will be the world’s most strict legal system for protecting personal information from threats such as big data or artificial intelligence.

For example, the GDPR ensures the right to be forgotten for the deletion of data, the right to data portability which permits a person to remove their own personal data from a corporation, and the right not subject to profiling which is an objection to automatic determination using algorithms. Since there are no clear national boundaries for the internet, these regulations will apply to Japanese corporations and other Japanese institutions that provide goods and services to EU citizens. Furthermore, there are restrictive regulations concerning the transfer of personal data from the EU to Japan. Corporations violating these regulations will be fined a maximum of 4% of their annual net sales or 20 million euro (approximately 2.6 billion yen).

In this way, Europe has developed legal systems for protecting personal data based on the concept of human dignity.

4. Liberty—America

The United States Constitution states the blessings of liberty. America is the birthplace of privacy rights, and those privacy rights have developed based on the philosophy of the individual liberty. Acting as a Boston attorney and as a Justice of the United States Supreme Court, Louis Brandeis established the right to privacy. In case involving the interception of telephone calls by an investigation authority without a warrant, Brandeis defended the right to privacy as the right to be let alone. Brandeis proclaimed that the right to privacy is the most comprehensive right and has been most valued by civilized human beings.

About 10 years prior to this decision, Brandeis argued about the curse of bigness. He pointed out how giant corporations warped the market and described the adverse effects of monopolies. Brandeis may have recognized how personal freedom would one day be threatened by the curse cast by major corporations capable of collecting and analyzing enormous amounts of personal information.

These ideas of Brandeis coincide with the current position of the United States Federal Trade Commission. The Commission has levied fines on corporations that have handled personal information unfairly or deceptively. Also, in recent years, the Commission has begun to recognize how the individual liberty can be taken away by giant internet corporations that accumulate huge amounts of personal information. These corporations create conditions in which users have no choice but to submit to conditions which are disadvantageous to privacy.

Thus, America has developed privacy rights that are based on the freedom of the individual.

5. Respect?—Japan

Based on the different concepts of dignity and freedom, Europe and America have defended privacy rights and constructed legal systems for privacy protection. Today, we can see significant differences which make it impossible to lump together privacy issues in Western nations.

Now, what concepts and philosophies have served as a basis for fostering privacy rights in Japan?

Privacy in Japan can be found in the spirit of etiquette which frowns upon intruding into someone’s private affairs. The understanding of privacy unique to Japan has arisen from this spirit of etiquette and seems to have served as the origin for handling of personal information by the government and corporations. Despite not having any articles on privacy rights, Japanese courts have ensured privacy rights in practice. This reflects provisions in Article 13 of the Japanese Constitution, which states that all of the people shall be respected as individuals.

However, it is now time to rethink the discussion on privacy rights in Japan. This is necessary due to the difficulty of having artificial intelligence, robots, and other forms of technology respect the etiquette of privacy. In order for Japan to soundly advance new technology that uses data, there is the need for systems to protect privacy as legal rights which surpass the etiquette of privacy.

Based on European and American legal systems, it is essential to construct an original legal system for privacy rights in Japan in accordance with the right not to be judged based only on automatic processing of data, restrictions on data retention period, the right to data deletion, remedy from discrimination and prejudice caused by data, and data portability as a measure against data monopolization by mega corporations.

The core of privacy in the era of big data is, based on the principle of respecting individuals, to prevent the unauthorized creation of self-portraits using data and to ensure that human beings themselves possess the right to construct their own self.

6. The locus of privacy

Human beings are the subject and data is the object. Reversing this relationship between human beings and data would create a world in which human lifestyles are determined from data. This would contradict a way of life that respects individuals.

In today’s ICT society, data is beginning to assume control of our daily lives. We must now reconfirm the locus of privacy. In Europe, that locus is the dignity of human beings. In America, it is the freedom of individuals.

In order to increase the richness of data utilization, Japan must surpass the spirit of etiquette and reestablish privacy rights as a further buttress.

Reference Material

• How companies learn your secrets, New York Times, February 16, 2012
• With violence up, Chicago police focus on a list of likeliest to kill, be killed, Chicago Tribune, July 22, 2016
• Did Cambridge Analytica influence the Brexit vote and the US election?, The guardian, March 4, 2017

Hiroshi Miyashita
Associate Professor, Faculty of Policy Studies, Chuo University
Areas of Specialization: Constitutional Law, Comparative Constitutional Law, Information Law

Hiroshi Miyashita assumed his current position after completing the Doctoral Program in the Graduate School of Law, Hitotsubashi University, obtaining a PhD in Law, serving as an official in the Office of Personal Information Protection, Cabinet Office, and serving as a Visiting Scholar at Harvard Law School.
Major written works include: Control of Big Data and Privacy Crisis [Biggu Deta no Shihai to Puraibashi Kiki] (2017, Shueisha Shinsho), Cases Studies on Privacy [Jirei de Manabu Puraibashi] (2016, Choyokai), Restoration of Privacy Rights: Collision of Freedom and Dignity [Puraibashiken no Fukken: Jiyuu to Songen no Shoutotsu] (2015, Chuo University Press) (received the 31st Telecom Social Science Award), and Policies on the Protection of Personal Information (2010, Choyokai).