Privacy, Data Protection and the Age of Algorithms
Technology is part of contemporary life, and because it is an expression of the reality of the information society, it cannot be left out of the law. Far beyond hermeneutics in the interpretation of norms, the law faces a new challenge, technological issues. Algorithms have become an important resource in the development and improvement of products and services. Technology is not averse to law, there is much to be debated, the academic theoretical framework is fundamental to guide the best interpretation and application of the law to specific cases. The general objective of the study is to promote a bibliographic review about the concept of privacy, pointing out its main elements. The article aims at researching the use of algorithms, seeking to understand its impact considering the constitutional right to privacy. The working hypothesis is to verify if the use of algorithms along the current lines, preserves or not the right to privacy. As a conclusion, the study points out that the term privacy, depending on the socioeconomic or cultural context, has different meanings and is far from being a doctrinal consensus on its concept and that the use of algorithms is currently obscure and there is no specific legislation to be. followed in this field.
The history of privacy is deeply intertwined with the history of technology, has long been a definition for the term is discussed, in addition, the idea of what is privacy is changing, as is the mutant comportament to society itself. At the beginning of the century, the publication of a photo without consent could become the subject of a dispute between the photographed subject and the author of the photograph, today, nothing more common than we access social networking is and we encounter the publication of intimate known and strange moments.
The construction of human personality before the world is no longer limited to the individual field, but stems from the relationship between the individual and the others. This interaction permeates the digital means of communication. Therefore, the guardianship of this individual must take place “in relation to others (the meaning of otherness) and to the external world. Today it is known that the human being exists only as part of a species that needs other (s) to exist (rectius, coexist).
Society is fully engaged in a technological information revolution, but it is just beginning to understand its implications, including in the field of law. In the last decades, the way we shop, carry out bank transactions and interact with our peers has resulted in a gigantic accumulation of information about where we are, what we do, what we have and our tastes. With the use of technology, these records are preserved indefinitely in databases, classified, reorganized, combined in hundreds of different ways and used for the most diverse purposes, from marketing notifications, credit analysis and even for evaluating possible love matches.
Concern for privacy varies over time, ethnic and social subgroups, sex and so on. A seemingly simple name and address on a website may not have any implications for most people, but situations of vulnerability profoundly alter the context of privacy, for example, victims of domestic assault and witnesses to crime, certainly do not intend that such data are available for public access.
Without a nucleus of legal meaning for the term privacy, even if there is a legal provision, any law will be inadequate to enforce the right to privacy. Warren and Brandeis point out that social and legal tolerance of public exposure can corrupt a society, diverting attention from important economic and political issues. The authors add that while several strategies, including laws, have been employed to protect privacy interests, the standard must explicitly authorize people to determine the extent to which their thoughts, feelings, emotions and productions become available to the world at large regardless of any economic valuation.
Far beyond hermeneutics in the interpretation of norms, the law faces a new challenge, technological issues.
Algorithms have become an important resource in the development and improvement of products and services. For example, a bank can use data about users' browsing habits on its website to improve the view of the program screen, improving the customer experience, reducing the time between the user logging on to the website and making a payment.
We are going through a moment of transition in human interactions due to the use of technological tools, which demands research from the legal point of view. While several countries have been discussing the right to privacy and data protection since the 19th century, in Brazil the most in-depth studies emerged with the Marco Civil da Internet, in 2014. It is imperative that legal operators understand the application of technology in the context of social relations with the necessary depth.
Technology is part of contemporary life, and because it is an expression of the reality of the information society, it cannot be left out of the law. The judiciary will certainly have to judge demands involving source code, algorithms, SQL injection, phishing, IOT, query among many others. It is in this gap that the research and academic production contribute by improving knowledge for improvement and material evolution of society, enabling, for example, theoretical framework for the effective rules applying to the case or not the design of new public policies aimed at welfare Social.
To Danilo Doneda, the law must be able to provide answers to questions brought by technology with attention to the constitutional text. The author very well points out that “The real problem is not knowing what the law should act on, but how to interpret technology and its possibilities in relation to the values present in the legal system […]”.
In addition, the instrumentalization and effectiveness of law involves the construction of solid interpretations, the lack of clarity in legal terms creates barriers to formulate policies or even to resolve disputes. The parameters brought by the interpretation and application of the law reflect the legal security that full citizenship demands.
A right that is not able to understand the dynamics between society and technology and the new problems resulting from this relationship loses contact with reality, becoming early obsolete.
There is a lot to be researched and produced, the theoretical apparatus is fundamental to guide the best interpretation and application of the law to specific cases. When searching for the biography of the references used in this work, what were found were several philosophers, sociologists and researchers linked to information technology, but few doctrines linked to law, which further reinforces the importance of studies on this matter from a legal perspective.