Welcome. We are now at the Tilburg University and visiting Bert Jaap Koops who's holding a chair on regulation and technology. The first question I'm going to ask him is why we are sitting in this way. Yes. It might be somewhat unusual, but over the past few years, I've become increasingly concerned with facial recognition, which is fast in development and which in a few years I think will be so common that anyone can use a facial recognition app which will particularly work well if you have a lot of pictures of yourself online. So I've been very hesitant to have my picture full frontal at various places in various settings online because I'm afraid that people in the future will recognize me more easily when I'm walking on the street, and because I value my privacy, I'd rather be not that much or that easily recognized. But being an academic means that you will have a lot of presentations and things like that. So you are going to be photographed and filmed all over the place, and put on the Internet even then. Yes, although not usually very close. So many of these presentations, if they are online will be from a bit farther away. Increasingly, I also noticed perhaps, particularly with the GDPR, the General Data Protection Regulation now, that you're being notified in advance that they are taking pictures and you can say that you wouldn't like them. So I usually also object to those. Whether they really cut me out of the videos is a second thing, but at least they make an effort. You didn't give your consent at least or you have the possibility of withdrawing them at least. Okay. But the main reason why we are here today, it's nice that we are having a MOOC on privacy, and then you don't want to be full and being taken on the video. That's nice. I really like that. But the main reason why we are here is, I would like you to explain what the history is behind the coming of being of your typology, which you wrote with a number of colleagues on. Would you be able to explain that to our audience on what elements played a role in that and how you came to, from an academic view? A huge article, it's a whole bunch of pages. It's a typical US Law review article which is often these 70, 80 pages long. Yeah. So you modeled it towards the article length that was allowed for- Yes, but we needed that space. So to explain why we embarked on this, this was a bit of an unexpected thing, but it turned out that it was very useful in the end. I have a large project funded by the Dutch organization for scientific research, NWO, five years. This is the last year. So in the first two years, we started thinking how we can protect privacy in the law when the old frameworks for privacy protection are really 19th-20th century, and they don't really work well anymore for the 21st century. We particularly apply that to the context of criminal procedure, so what the police can do in terms of criminal investigation, and that is typically regulated by constitutional law. So you have certain privacy rights versus the government, and law enforcement is one of the main instantiations of the government that can really intrude on your privacy very forcefully in order to see how privacy is currently being protected under constitutional law and looking where the gaps are in that. In order to do that exercise, this is a large-scale comparative law project where we look at nine countries to see how the countries are dealing with contemporary privacy challenges. We needed some kind of idea how to delineate privacy. So we started with looking at how is privacy conceptualized nowadays in the legal frameworks. So we started with looking at the constitutions of the nine countries we are studying, that are three common law countries, the United States, Canada, and the United Kingdom; three civil law countries that are fairly obvious in these types of comparative researchers, the Netherlands, obviously because that's our country here. Germany, because that's quite similar to the Dutch system in terms of criminal procedure, and Italy, which also has a roughly similar system to criminal procedure. Okay. Then, we chose three, what I call exotic. They're not really exotic but different countries that are not typically used in these types of comparative researches. Those are the Czech Republic, Poland, and Slovenia, all of which are countries in Eastern Europe that also share a lot of the German legal tradition, but at the same time have a history and totalitarian state surveillance, and therefore might have interesting differences in terms of how they protect privacy nowadays. Yeah. So that is the setup of these nine countries. For the constitutional law, we looked at how those constitutions protect privacy, which we also checked against some 25 or 30 other countries to see whether there might be some bias or gaps in this, which didn't really turn out to be the case, in order to come up with, well, the main types of privacy that they're protecting. Maybe it's useful to show the first picture we came up with, which is a picture delineating the various elements in the constitutional law. So usually, the constitution will say, we protect privacy in general, and then you have a number of special privacy rights, which particularly, classically, and the most obviously protected is the privacy of the home, already for a long time and privacy of communications. Then, you see various approaches. Partly, some countries also protect documents. Some countries start to protect computers as a new instantiation, but that's really recent. We have a whole set of protections that relate more to the privacy rights of the person himself or herself, autonomy, identity, freedom of the person, freedom of the body, freedom of thought. But separate from that is the protection of personal data, which not in all constitutions, but in some constitutions is now also being regulated as a constitutional issue, although with considerable differences. But if you look at the picture, it's a bit of a mess and there was a lot of overlap in there. So that didn't really provide much in terms of a good framework to base further privacy research on. So that's when we came up with this idea of a typology. In order to do that, I'll briefly guide you through how we came up with the typology. First, it's useful to briefly explain the difference between a typology and a taxonomy because they're often used interchangeably, which I did it myself in the past. But when we started on this, I find out that there's good literature on classifying things, and there is a clear distinction between taxonomies and typologies. Taxonomy typically is for instance, I have this picture of animals, how they developed over time. So you have a very ancient animal and then they developed into different things, and once they become really different, you classify them in a different category and you have subcategories. So that is typically something that is a categorization of real-world entities, so concrete things that have developed over time. That's very different to a typology which is far more conceptual. So if you look at a typical typology that is usually a scheme of two or three dimensions where you have different things. I have here one very simple thing to illustrate. If you have people's attitudes towards typologies, Some people really like this type of exercise, other people really don't like them. You can put that in a categorization where you on the one hand have the dimension of people's attitudes, so do you like typologies or do you dislike them, and what do you do with them? So the behavior. Do you make them or don't you do anything with them, or? Then you get a very simple typology of people who like typologies, people who dislike typologies, people who construct typologies, and people who deconstruct. The point of making such a typology is that it shows the main dimensions that you can look at a certain concept. In this case, the concept of a typology, but also it shows the relationships between the different classes. So you would expect people who like typologies to make them and people who dislike them to deconstruct them. You would also expect people who like typologies not to cooperate too often with people who dislike typologies because they have very different approaches to what they do. Yeah. So when you apply that to privacy, we looked at what are the main dimensions along which you can structure types of privacy. The first and main dimension, I think, is the zones of social interaction that people have. So privacy is important in many aspects of life. Partly it relates very much to you yourself and no one else. So in the solitude of your bedroom, no one is there. That's a certain type of privacy you enjoy based on you yourself. Absence from all interaction. Then you have an intimate zone where you engage with people very close to you, usually that will be your family or very close friends with whom you have intimate life. Then you have a wider circle of social interactions. Still it's not really public, but that is the circle of classmates, friends, colleagues, all the different people you engage within different social settings. But without them what you do there and what you tell them being public, which also includes for instance your relation to your physician, your relation to your priest or to other of these professionals that you go to and share. Psychiatrist, psychologist. Sensitive data with. You would also expect them to keep secret what you're telling them. That's the whole point. Sometimes they are even obliged on the basis of the profession. Definitely. Then you have the fourth really public zone where you interact with an indefinite number of people, so typically walking on the street. But also there you might expect some level of privacy. So that's the first dimension from the really private to the really public. The second dimension then is the dimension of freedoms. So classically, Isaiah Berlin's distinction between freedom from and freedom to. The freedom from is what typically Warren and Brandeis say being left alone or being let alone. So you. No photographs being made and put in the. Yeah. Meaning you shield yourself off from the others. But freedom also has a positive connection in the sense of you have the freedom to develop yourself and much of the literature on privacy. The theoretical literature also emphasizes that point of self-development. So that's another major dimension. Then we have a third dimension which is a bit less visible in the graphic but equally important, which has a cross-cutting dimension because it overlaps with these two. From on the one hand access control. That is where you have the power to regulate the boundaries. You decide who you let in and who you leave out. Towards the other end where you don't really control what other people get to see of you but you rely on them keeping secret or private whatever it is that they're seeing or you're sharing with them. Yeah. Where typically would be in a train coach or things like that that people could, well, it's almost in your space so to speak but nevertheless it's a very public space also. Yeah. If you have a phone conversation on a train, people can hear it, but you wouldn't expect them then to really on the Internet to say, "Now this person," and you take a picture of them, put it online and said this, this and this. So that's where you rely on people's discretion in order not to pry into it. That also means that you don't ask too many indiscreet questions, for instance. So much of privacy also relies on social norms where other people protect your privacy rather than that you can technically shield it off, so that's a third dimension. Then within these dimensions, we position the various types of privacy that we encountered in the constitutions. So there's a typically starting point is then the law? Yes. In the sense that the constitution should really say something about the house or say something about the body or say something about the spatial or communications correspondence like story. So it's based on, so your. The starting point was the law. But to classify these different types, we also looked at what the literature, so academics scholars have previously said on the various types, which includes sometimes new types which are not already crystallized in the law. Of course you should also realize that we base ourselves on constitutional laws and constitutions lag behind a little bit. They're not really forward looking, but they condense what is really considered protection worthy at a certain point in time. Yes. So we positioned eight types of privacy in there. Would you like me to go through them step by step? Yes. Yeah. Each of them. I mean in your slides, it is like the bodily one and or gets a totally on the other one that you are allowed to think whatever or not to think whatever you want. So yes, it would be nice to have all these loose elements. Okay. Then it makes most sense I think to go through them zone by zone. Also because there you see the connections between them. Yes. So in the purely personal one, you have the privacy of your body that people are not allowed to touch you unless you're really invite them or consent to being touched. Very typical in the Me Too discussion I would think. It also regulates, particularly in the criminal law context, to what extent the police can really search you not only on your body but also look inside your body, which is considered more intrusive looking inside the body. So there you see the boundary of the skin is really important for your bodily privacy. That's more the freedom from, so you can really prevent people from touching you. But there is also the freedom to, which is your mental privacy which is more the freedom to think whatever you want. Extremely important particularly in criminal law, we criminalize behavior, we don't criminalize bad thoughts. So privacy of the mind there is really considered important, partly for a practical reason. It's very difficult to really know what you're thinking unless you're telling us. There's no screen on the front of your head, so. Yet, but with mind-reading technologies we can. Exactly, exactly. Get into that debate later on. But so far intellectual privacy is an important part but it's rather underdeveloped in the law simply because there haven't been too many intrusions on it. So that is the personal zone. Then in the intimate zone, and that's one of the epitomical or most classical cases of privacy, spatial privacy, particularly the privacy of your home. Protected for a long time. Of course, you should realize that the home as we now know it is also a fairly recent invention in the sense that it developed perhaps only in the 18th century or so. Previously you lived with all your servants, family, wider family or your cattle in one big room. Well, even in your profession. Also, the workplace was in there. Occupation was you live then you worked in the same spot almost. Only in the 19th century that the work had outsourced to a place outside of the home. Yeah, but that was because there was no energy availability in every house. So you had to go to where textiles could be made and things like that. So you needed power and it was too difficult at that moment to have power in every house, so. But the saying, my home is my castle already dates back from a bit longer than that and already in the 15th century I think the notion that the government couldn't simply enter someone's home was already quite developed then. But spatial privacy in the law is typically restricted to the home and not to other spaces. Sometimes through some other spaces but that's very limited, and certainly not to public spaces, and that's one of the issues and one of the reasons why I do this project. Nowadays, you take a lot of your home with you because the home is also are these the things you stored in your home and what you left at home previously, you now take with you on your smartphone. So that's a very major challenge. I think for the law to get updated. Related to the spatial privacy is the, what particularly in the US is strongly developed, decisional privacy, which is the privacy to decide on intimate life matters. So with whom you want to live, to share your life, whether you want to have children, whether you want to have an abortion. To be free from unreasonable constraints on your decision powers on how to shape your intimate life with people, which is also an important part of being able to develop yourself and to develop an identity. Of course. That's why the religious freedom that they are really very fond of, so to speak, is one of the consequences, of course. It's the consequence of the religious freedom. It's not the other way around. Yeah. But that's strongly connected also to mental privacy again. Then in the third zone, the semi-private zone, where you have more interactions but still not completely public. The typical type of privacy there is the communicational privacy, so that you can communicate with people without fear of the government overhearing this. Which is also very ancient in the form of privacy of letters. So when you put your letter in an envelope, there are usually fairly strong safeguards against opening the envelope and reading the contents, and with new communication methods that has been transposed into privacy of telephone conversations in our privacy of email. To more or lesser extent, we could also discuss that, but in principle still the contents of communication when it's clear that you want to get them secret and not write on a postcard where it can be read from the outside, that it's considered strongly protected. That also correlates to your freedom to associate with people. So to have groups that you want to share your private life with. Also, possibly more important similar to your private conversations with your psychiatrist, also groups like alcoholics anonymous, where you have really intimate settings but with people you otherwise don't know. Stranger, so it's not really your intimate by [inaudible]. Yeah. Even trade unions and things like that, so like the previous your freedom to associate is very important. Yeah. That it's another the right to associate with people and the right to have unions and demonstrate, but there's also a privacy side to that that if what you do there is not kept confidential, that it might have a chilling effect on your freedom to associate with people. Yes, I agree. Then in the final the public zone, that was a bit more difficult to find the prototypical types of. Yeah, that I can imagine. Privacy. Particularly because the law doesn't really protect privacy in public spaces very much. But one element that we really found in terms of shielding off is what we call proprietary privacy, so the privacy of your property, the property that you carry with you on the street cannot simply be opened and looked into. So if you have a handbag and the police would want to know what is inside, there are certain safeguards. More importantly I think there is the positive freedom of behavioral privacy. So the freedom to behave without inhibition whatever you want. That we have and I seen on we speak to normal phone and now that's something which is very. Well, I like the Dutch traditional framing of privacy has the freedom to be yourself without inhibition. Yes. Very much. Of course there's not that you can be completely yourself, completely uninhabited because we don't want some people to walk around the street naked or do very antisocial things. Well, the work I've said nobody was saving them, let's say in the '70s and '80s it was. More accepted. But now the social norm is not really to that extent. No, no. We don't do that anymore. We don't accept that anymore. Of course there are also limitations to these, but relatively speaking you should still be able on the street to be yourself, which is one of the reasons why for instance I'm concerned about facial recognition because now if I visit another city for example, I feel relatively anonymous. Of course, I could be recognized, but it will be purely coincidental. So I could go to pubs, I could go to parties, I could participate in demonstrations which I otherwise wouldn't do if I would feel that people would know that I would do such things. But if people could make pictures of me and facial recognition could easily pin my name to that. Then also put that online then my freedom to feel free in another city and anonymous would be really gone. Yes, that's. So behavioral privacy is the one of the also a major challenge I think in privacy exception. Let's say from a legal point of view there's two areas which are, let's say underdeveloped because the technological, let's say the same spatial environment and the one we were talking on the last one that we need to decide on the fact that in public I can be inhibited, but if there is a lot of technology available to seek you out and to determine whether you were there or not there and even years later, because that's one of the other things, a lot of, I mean in the old days it was very difficult to keep everything, the images was too expensive to save them and whatever, but now it's everything can be saved on a hard disk and put in the Cloud and whenever and then seven years later you can even see, did he indeed go to Florence or did he indeed went to the demonstration in London this last weekend. So it could be done that like that. Particularly also prospectively if you don't know how the information that is being registered, how long that will be stored and who might have access to that, that might really have a inhibiting effect on your freedom. Yeah, that's where the chilling probably comes from. Exactly. One of the things we're, oh sorry. Well, there's one thing missing here, which if you see the picture and what many people would now start wondering, informational privacy. So that is which we put and I think that is one of the nice things of the typology. Most of the previous classifications of privacy said you have spatial privacy, communicational privacy, behavioral privacy and informational privacy. Just these categories, one has the other. But we present and I think that's a good way to look at it informational privacy as an overlay on all these other types of privacy, because your bodily privacy, your communicational privacy, your behavioral privacy always have an informational component. It's about what people know and what data they gather about you. Yes. At the same time it's not only the information, it's also the physical element, the feeling of. So even if someone burglars into your home and doesn't steal anything, the fact that someone walks in your home is felt as an intrusion. Yes, a heavy intrusion at it. Regardless even if it was a blind burglar. Whatever. It still feels as an intrusion and that means that you cannot pin it down to informational privacy only, it's also this spatial privacy in this case. So that's one of the things that I learned from this typology that privacy is always about information but always also not only about information. No. It's also about the interaction, it's also about feeling free, having the capability to be free because that's also one of the things of course. No, I fully agree, I mean when you talk about home thermostats for instance, like the ones that are now being flown in to the house is almost everybody's putting it. That tells a lot about how your household works and when you're at home, when you're not at home, whether you are chilly or not chilly and things like that so. Even if I'm in some of these even microphones in areas which could be switched on and off on whomever that decides it's not even my own decision, it's a decision of the platform. One very important thing with a lot of people don't realize is the way you have been working on the typology, it was also because he wanted to become knowledgeable so to speak on what the government is allowed to do in the form of the police or in the criminal law. So it's these rights or these fundamental rights or classical human rights or whatever you want to call them. It's only in one dimension in the sense of it's against the government. A lot of human rights have been developed against big brother or the government. The thing at this moment is of course that it's no longer only the government that can do all these intrusions we have been talking about, it can also be done. So would this typology also work in let's say in a more private commercial setting or should it work like that or what's your opinion on that? In terms of the research that we're doing, that is really focused on the government versus the citizens. Yes, [inaudible].. So I can't really say about how the law actually should be in these private settings. But in principle my intuition is that the typology is fairly comprehensive in the sense that I can't really imagine at this point new types of privacy that are really fundamentally different. We don't claim that these are the only types, but we say that the types can easily be put in the categorization of these dimensions, and they would often then relate somewhat to the type that we put in there. But those are ideal types and there are many variations there. I would imagine that in relationships between citizens and relationships between consumers and businesses, the same types of privacy also matter and not others. However, the law might regulate them differently. Might also have similar types of regulation. There are similar protections, but that it's very context dependent, right? Also, I talk about the government, but criminal investigation is one type of government intrusions. You'll also have intelligence services, who have wider scopes and a bit less safeguards usually. You have tax authorities that are intruding upon people's privacy and all kinds of other government institutions. There's no real, the government because a detailed [inaudible] So when you want to get privacy protection in the law, of course, at the constitutional level, you can be very general. You just say the government should protect people's privacy of the home, and exceptions are possible by law under these safeguards. But then the law can specify the safeguards which might differ for example between law enforcement, between tax authorities and the intelligence services or the municipality whatever. At the same time I think the same could apply to businesses. So usually the law would not allow businesses to enter your home without your permission. Also because there's no real reason to do that. But much of the informational control might be a bit different for the private parties or the- Yeah and of course- -the state parties. No of course, but let's say state parties are countries. There's no real global government yet. But as global firms that work in this. So there's this we will need to develop a way of getting either that the global companies are being held back so to speak on a national or even European or US level, but at this moment they can thrive also on the fact that both an individual can say, "you can have the data, " and that the country can say, "It's not ours because it's the firm from another country or another continent." So that's- Yeah. Well, that's also what makes it extremely complex Yes. And even though I have a five-year project and five or six people in my team, I don't pretend to solve the whole issue so I focus only, and this is complex enough, on criminal investigation and the contemporary challenges there. One reason I do that is that, much of our colleagues in the field do study the data protection issues particularly against big business. So that is covered relatively well. Not that they have ideal solutions because- No they don't have until now, but- But at least it's being studied. Whereas, I think some of these new challenges in criminal investigation are really underdeveloped partly also and I feel fairly strongly about that when I present my work and say that you should have good safeguards against the police. Then people say but Google and Facebook are far more powerful and do many things. But one of the things they kind of do is put you in prison. Also arrest you. Or arrest you, or kill you even. So under certain circumstances intelligence services or security services might have the right to kill you, and I hope that Google doesn't have that right and shouldn't. As far as we know until now they didn't do that yet so- So the government has a certain type of power and particularly the monopoly on violence that makes it extremely important to have adequate safeguards. Which is not to say that safeguards against big business are not important. They are extremely important as well, but they're a bit different in character. No, I agree. Also, let's say if private law there really can help in the sense that you are not allowed or you can say no I don't want, as yourself don't use even a mobile phone, so you can say I don't play with the rules or I don't play with this. In principle, you can choose another provider for your mobile phone, for your social network Yes. In principle, you cannot choose another government. No. But of course in practice, you might choose another government by emigrating. Which might be for some people more feasible than migrating to another social platform. That's also true. Well, I thank you very much for the explanation. We always end with two final questions. The first one is, but we already got a bit of an answer to that is, how you yourself appreciate your privacy in the sense of what do you do? Special things to prevent intrusion and to hope for as much freedom as because there's always these two dimensions. So what is your day to day behavior towards this? Perhaps less than you might think. So I don't have a mobile phone, but that's largely because I've never had one and I've never felt the need to get one so far. I hope I can keep that up for a long time, but there's increasing pressure for all kinds of services to have a mobile phone. But that's less for privacy reasons, I think, and more for reasons that I don't want to be distracted all the time by having to check all the time whether you've got some new. But that's the idea. They're specially designed to make this dopamine cake and things like that. So that's true, but you can close it down here old-fashioned cooked cookie jar. For the rest, online, I'm not that particular format privacy, so I don't use special privacy protection technologies when I go online. Except that one of the things I do have is the webcam protection that you have these slides that. Allows you to- allow you to- I think that should be a feature of all the computers nowadays. You do the same with the microphone? No. Do you have a feature for that, for the microphone. A chewing gum. Well, if you have something more sophisticated, I'd be happy to use that. Well, that would be a nice design assignment for some students to make. Definitely. The only thing that I do is a bit similar to here, I wouldn't like really to become a public figure. So not that I would be asked each day for the latest talk show, but most of the TV interviews I simply decline. Partly because I don't like the rush off TV interviews. I mean, this interview is very nice because you can get in-depth, but with TV it's usually one minute soundbites and that's it. But also, it's the fact of that people might recognize you the next day, "Oh, you're the guy who was on the TV show last day," which wouldn't appeal to me. Yeah. No, I can imagine that. The last question I would like to ask you is, what should learners, the people that I have going to follow the moocs, what should learners do and know and behave on concerning how to deal with privacy? What would be your advice from the knowledge you have, for instance, on criminal law and privacy and the seizure capabilities of the police, what would you advise them or give them as thoughts on how to behave for themselves in this very connected world? You mean to protect their own privacy or to help protect privacy in the- I mean both of them, but in a sense what, the learners usually will be young people, so we are a bit older, so what can we give them or what can you give them as an advice to deal with- I mean, your a concern of being over a somewhat longer time that facial recognition might really maybe even inhibit you to act upon things because you know you have been in by this or demonstration that or whatever. So in that sense, what would be your advice to the learners be on? That's difficult to say in general. Right? So that's with many things on privacy, you can have the very general ones are too obvious, so that doesn't really help. I think that the only general thing I would say is try and be aware both of the risks that you might run when you share things particularly if these are young generations studying. I'm just preparing my lecture for tomorrow's class in cybercrime, which partly is on revenge porn, and sexting. Okay.Both very basic Your learners will probably be a bit older than the adolescents that are typically the object of sexting and becoming victims of revenge porn, in the sense that they share some picture in the trust that your boyfriend will never share it with anyone else. Three weeks later- Don't think of the possibility that your relationship might end, and that someone would then share it with others out of spite, or for fun, or which kind of really strong consequences. Which is not to say that people should never share nude pictures, because being able to be yourself is also about learning, and experimenting, and doing things, but at least, well, you should try and do some cost-benefit analysis there, or think what might happen if someone would, if this picture would end up with my classmates or on the Internet. More in general, I think it can always help that you are aware of when you have all these services, whether you really need to accept them just without looking. Sometimes you might be a bit more critical in looking and for instance, with cookies now, you have sometimes a bit more choice of choosing the privacy friendly type of cookies. I hope that something like that will come up with terms and conditions that you can choose, also within the terms and condition. The level of intrusion almost. Well, perhaps even the default setting. So particularly with the surfaces, it's always good to look at the default settings and then set them at the most privacy friendly. I think more importantly rather than protect your own privacy, it's to be aware of also trying to protect other people's privacy, partly because you are one of a multitude. If you just don't care about things and click on everything without thinking of it, it's a bit like the climate change and the environment. Your small plastic bag might not seem much, but if everyone just thinks it's just a plastic bag, we have a climate change problem. The same applies to privacy. If you are a bit careful of protecting your privacy and that of others, it might help in the overall run. Yeah. Particularly, if people would be in the position in certain professions working in industry, there is a lot to be done in privacy by design, which will I'm sure be in your course somewhere further down. Yeah. The my main advice there would be, be very aware of the importance of privacy, but don't see it as obstacle or extreme limitation that you're not allowed to do whatever you want, but as positive challenge. Usually, it's possible to look for a win-win situations that you can have the right functionality, whatever you want to achieve. But with a bit more privacy friendliness. It doesn't have to be complete- The new once, again, is also given or the balance is also very important, of course, because a lot of people now screaming, "Is not allowed under the GDPR." That's not true of course. It should really be fine tuned to the case at hand, to the technology, to all the different interests, and then much more responsible than people often make it seem. This was the last question, but I still would like your opinion on, let's say, from a constitutional point of view, the difference between what we are doing in Europe so to speak, when we talk about human rights, and the privacy, and the GDPR, and things like that. Whereas, on totally other side of the spectrum, there's the American way of protecting privacy, in the sense that it's not a real constitutional right, in the sense that the word privacy is not there, of course the home is there, and seizure, and things like that, from a general point of view. But do you think that this specialization in laws as the United States takes in comparison to what we do in Europe, that we have a general underlying human rights type of protecting? There is, of course, good things in the sectoral approach and there's good things in the human rights type of approaching. What's your opinion on that? Partly, I don't quite agree with your framing of the question, in the sense that you're mixing up or suggesting that the constitutional rights that are really different. That's not really the case, I think, but it's the underlying. Under the constitution it's how you, in the normal statutory law, approach privacy where you have the, particularly in informational privacy. Yes. You have these distinctions. But in many of these other areas that we're studying, for example, what the police can do when they search you, or frisk you, and search your smartphone, partly that's an informational privacy, but it's really an issue of how you structure criminal procedure. Of course, in search and seizures, of course very well-protected under- Exactly. -American bill of rights. That's true. Of course, they also have some peculiarities to the legal system, but it's not altogether completely different. No, that's true. At the constitutional level, it's an interesting thing you say that the US doesn't have a right to privacy in its constitution, but it's being read into the Fourth Amendment, but also the first, and the fifth, and the 14th. Yeah. Due process and everything else- Yeah. So they construe a right to privacy in there, but the same happened in many other countries. So the German Constitution doesn't have a right to privacy, but they read it into Article 1 and 2. The Italian Constitution doesn't have a general right to privacy. In its constitution itself, it has the protection of the home, communications, and personal liberty. But it has somewhere in the 1970s, recognized that in the general right to personality, Article 2, also includes a right to privacy. So they have, in its constitutional development, recognized a general right to privacy, but without the specific safeguards that these special rights have. So in that sense, that's very similar to the US Constitution. Yeah. But then you are comparing, let's say, one-to-one countries. But when we see, for instance, the European Convention on Human Rights and of course the privacy in the special UN treaties and everything is there, but that's a bit of a hate-love relation the Americans have with international treaties. Yeah. I think at that level what many people would say is that the US has a really different mindset in considering privacy versus Europe, in that Europa is very dignity based and the US is a bit more, well, I'm not quite sure how to capture that. Private law based, in the sense that it's, at least that's my, or sector based. I mean, the financial and the health privacy laws for instance, are very strict, very strong, but they are being watched from an economic or being controlled or audited from a more economic or consumer protection-like approach, whereas we are, we in the sense of in Europe, let's say, the convention, it's more an underlying principle which could be applied in all kinds of different sectors. I mean, that's the strong point of human right in the way we have formulated it. But the same applies to US. They could also, from this general constitutional framework, have much more sectoral laws or have an overarching law. There have been proposals for that. Yeah. So it's more a matter of political will rather than constitutional or legal frameworks that point in one direction. No. But because of neoliberalism or things like that, it's of course, it's taken away more and more from individuals. It's like in the sense that it became more corporate over the last 20 years. That of course, also relates to the very different societal traditions, in that in Europe we generally, although that differs per country as well of course, but generally we trust our government but don't trust industry. In the United States it's the reverse. Yes, that's the other way around. Yeah, that's true. Yeah, and if you see the last case in the Supreme Court of course, the July case is already, let's say, it's moving a bit more forward towards our way of approaching it. Well, in that sense. So that related to the third party doctrine. The fact that once you release something voluntarily to someone, then you would lose any reasonable protection, which is really outdated in this era and That was a long overdue judgment, I think. It's still very minimal, so they should do more there. But then if you look at the Riley case of three or four years ago, there the US was one of the first to say that your smartphone is really strongly protected against a police officer- Yes. -searching it when you- But that's like the copying of the homestead case in, what was it? 1928 or something, the telephone booth. It fits in that tradition, so to speak. So Riley case, I mean, the carpenters, I don't know yet. It's of course, the third party is also, it's strange to us. That's also the different functioning of the systems, with the common law system strongly relying on president and the courts deciding on new cases, setting the directions. Whereas, in Europe, we rely, Continental Europe, more on statutory law, and that's the privilege of the legislature, which is then corrected by the European Court of Human Rights when the legislation is really too outdated. Yes. Thank you [inaudible]. It was really nice talking to you. Thank you very much.
