Tag Archives: biometric data

New Special Issue of Communications Law: Information control in an ominous global environment

Communications Law JournalThe Information Law and Policy Centre is pleased to announce the publication of a special issue of the Communications Law journal based on papers submitted for our annual workshop last November. The journal articles are available via direct subscription, through the Lexis Library (IALS member link) and (coming soon) Westlaw.

In the following editorial for the special issue, Dr Judith Townend, Lecturer in Media and Information Law, University of Sussex, (the outgoing Director of the ILPC, Institute of Advanced Legal Studies) and Dr Paul Wragg, Associate Professor of Law, University of Leeds discuss the challenges of information control in an ominous global environment.

This special issue of Communications Law celebrates the first anniversary of the Information Law and Policy Centre (ILPC) at the Institute of Advanced Legal Studies. It features three contributions from leading commentators who participated in the ILPC’s annual conference ‘Restricted and redacted: where now for human rights and digital information control?‘, which was held on 9 November 2016 and sponsored by Bloomsbury Professional.

The workshop considered the myriad ways in which data protection laws touch upon fundamental rights, from internet intermediary liability, investigatory and surveillance powers, media regulation, whistle-blower protection, to ‘anti-extremism’ policy. We were delighted with the response to our call for papers. The conference benefited from a number of provocative and insightful papers, from academics including Professor Gavin Phillipson, Professor Ellen P Goodman, Professor Perry Keller and Professor David Rolph as well as Rosemary Jay, Mélanie Dulong de Rosnay, Federica Giovanella and Allison Holmes, whose papers are published in this edition.

The date of the conference, by happenstance, gave extra piquancy to the significance of our theme. News of Donald J Trump’s election triumph spoke to (and continues to speak to) an ominous and radically changed global environment in which fundamental rights protection takes centre stage. But as Trump’s presidency already shows, those rights have become impoverished in the rush to promote nationalism in all its ugly forms.

In the UK, the popularism that threatens to rise above all other domestic values marks a similar threat, in which executive decision-making is not only championed but also provokes popular dissent when threatened by judicial oversight. The Daily Mail’s claim that High Court justices were ‘enemies of the people’ when they sought to restrict the exercise of unvarnished executive power reminds us that fundamental rights are seriously undervalued.

Perhaps we should not be surprised at these events and their potential impact on communication law. In February 2015, at the ILPC’s inaugural conference Dr Daithí Mac Síthigh delivered a powerful paper in which he noted the rise of this phenomena in the government’s thinking on information law and policy under the Coalition Government 2010-15. In his view, following an ‘initial urgency’ of libertarianism, the mood changed to one of internet regulation or re-regulation. Such a response to perceived disorder, though not unusual, was ‘remarkable’ given how the measures in this field adopted during these final stages of the last government had been ‘characterised by the extension of State power in a whole range of areas.’ We should also note the demise of liberalism in popular thought. That much criticised notion which underpins all fundamental rights seems universally disclaimed as something weak and sinister. All of this speaks to a worrisome future in which the fate of the Human Rights Act remains undecided.

Concerns like these animate the papers in this special issue. The contribution from leading data protection practitioner Rosemary Jay, Senior Consultant Attorney at Hunton & Williams and author of Sweet & Maxwell’s Data Protection Law & Practice, is entitled ‘Heads and shoulders, knees and toes (and eyes and ears and mouth and nose…)’. Her paper discusses the rise of biometric data and restrictions on its use generated by the General Data Protection Regulation. As she notes, sensitive personal data arising from biometric data might be more easily shared, leading to loss of individual autonomy. It is not hard to imagine the impact unrestricted data access would have – the prospective employer who offers the job to someone else because of concerns about an applicant’s cholesterol levels; the partner who leaves after discovering a family history of mental ill heath; the bank that refuses a mortgage because of drinking habits. As Jay concludes, consent will play a major role in regulating this area.

In their paper, Federica Giovanella and Mélanie Dulong de Rosnay discuss community networks, a grassroots alternative to commercial internet service providers. They discuss the liability issues arising from open wireless local access networks after the landmark Court of Justice of the EU decision in McFadden v Sony Music Entertainment Germany GmbH. As they conclude, the decision could prompt greater regulation of, and political involvement in, the distribution of materials through these networks which may well represent another threat to fundamental rights.

Finally, Allison M Holmes reflects on the impact of fundamental rights caused by the status imposed on communication service providers. As Holmes argues, privacy and other human rights are threatened because CSPs are not treated as public actors when retaining communications data. As she says, this status ought to change and she argues convincingly on how that may be achieved.

The challenge of obtaining DNA evidence: exchanges between EU member states and fundamental rights protection

This guest post by Joaquín Sarrión Esteve,  Assistant Professor, University of Valencia and IALS Visiting Fellow, discusses legal issues around biometric data, based on a seminar presentation in November 2014.

Biometric data represent particular challenges in the fight against globalized crime. New technologies help us to identify persons, using fingerprint/palm print identification, iris identification, face recognition or DNA technology, for example.

The exclusivity of DNA facilitates its use for both paternity investigation, and identifying persons in criminal investigation, by obtaining the DNA or genetic profile.

We can use what is called the non-coding DNA for criminal investigation, which provides a characteristic of each individual. It is an anonymous code distinguishing feature and it can be useful for identifying the identity but it does not provide information on the physical or phenotypic traits of the individual (called the coding DNA ), although we also use the sex characteristic provision. The problem is that science allows the conversion of non-coding DNA to coding DNA.

The exchange of DNA data between EU Member States can help a lot in the fight against globalized crime. In this sense, the EU Legal Framework is based on the assumption of Prüm Convention regime: Council Decision 2008/615/JHA of 23 June 2008 (known as Prüm decision), Council Decision 2008/616/JHA of 23 June 2008 on the implementation of Decision 2008/615/JHA; and Council Decision 2010/482/EU of 26 July 2010 on the conclusion of the Agreement between the European Union and Iceland and Norway on the application of certain provisions of Prüm decisions.

Anyway, the goal of using DNA data is to obtain valid evidence for a criminal process [in general, a national criminal process]. And to do it, the DNA evidence must be obtained with respect to fundamental rights and legal guarantees in the three stages: the sample collection, the extraction of DNA profile and its treatment in a criminal database (Cabezudo Bajo, 2011).

Really, the problems in relation to this goal arise at three levels: the technical conditions, the interpretation of the results, and finally the respect of fundamental rights in the realization of the DNA evidence.

The goal of my research is to identify the requirements for the respect of fundamental rights in the use of DNA technology in the third stage, because the exchange of DNA data between EU Member States is located at the third stage. Nevertheless, another problem is that to obtain valid DNA evidence using EU exchange data, we need to respect fundamental rights in the three stages. In other words, it is necessary to look at all three stages to identify the requirements of one in isolation.

Moreover, we live in the European legal space, in a context of legal systems with different levels which are increasingly interlinked (Gómez Sánchez, 2011: 20), and therefore we need to use a European multilevel constitutionalism approach to identify fundamental rights and standards that we need to respect (European Convention on Human Rights, EU Fundamental Rights, EU Member States Fundamental Rights) and in order to achieve the goal of obtaining valid DNA evidence.

More information:

  • Download a Powerpoint presentation of Joaquín Sarrión’s research at IALS at this link

References:

M. J. Cabezudo Bajo (2011): “Valoración del sistema de protección del dato de ADN en el ámbito europeo”, Revista General de Derecho Europeo, 25.

M. J. Cabezudo Bajo (ed) (2013): Las bases de datos policiales de ADN ¿son una herramienta realmente eficaz en la lucha contra la criminalidad grave nacional y transfronteriza, Dykinson.

Y. Gómez Sánchez (2011): Constitucionalismo multinivel. Derechos fundamentales, Sanz y Torres.

J. Sarrión Esteve (2014),  “Derechos fundamentales afectados en la toma de muestras biológicas para la obtención de una prueba de ADN válida y eficaz, desde el punto de vista del Derecho interno y del Derecho de la Unión Europea.”, Revista de Derecho y Genoma Humano / Law and the Human Genome Review, Extra 1.