Protection of privacy and personal data are fundamental rights in Europe. Laid down in treaties, conventions, laws and case law. It is a legal right, enforceable in court, on a par with fundamental rights like freedom of speech and the right of assembly, the right to family life, the prohibition of torture or the right to property. And yet privacy and data protection are often regarded as (left wing) political views, rather than a fundamental right of every person in Europe. But in the era of big data, privacy protection and data protection must be amongst the highest political priorities. It is not about protection of data, but about protection of people. Us.
This must be reflected in the set up of the next European Commission.
Firstly, an EU Commissioner must be charged exclusively with Privacy and Data Protection (PDP). Currently we have Commissioners for the digital economy, and for security and law enforcement, but Privacy and Data Protection are just one topic in a very broad portfolio of a Commissioner. Privacy and data protection is clearly not a horizontal concern, so that often other Commissioners put forward legislative proposals that affect privacy and data protection, for example in transports (for exempel the retention of data of car drivers).
Surveillance powers for law enforcement and intelligence agencies have expanded drastically in recent years. In Commission proposals in the area of security, privacy and data protection took a back seat and were only a secondary consideration. Many surveillance laws are not in line with EU and Council of Europe legal standards. But the only way to challenge such laws is before the European Court of Justice in Luxembourg, or the Human Rights Court in Strasburg. Such a procedure is cumbersome and takes a very long time. It puts the burden of enforcement on the individual citizen, instead of on the competent authorities. And far too often the court rulings are ignored or applied in an arbitrary manner.
An EU Commissioner in charge specifically of Privacy and Data Protection will be able to ensure that all legislative proposals coming out of the Commission are fully compliant with all privacy and data protection standards. The EU Commissioner for PDP will also promote EU PDP standards in the world, through EU external policies.
Secondly, we need to use economic instruments to enhance privacy and data protection, such as competition rules and taxation. It is ironic that data protection used to be the responsibility of the EU Commissioner for the internal market. We should consider putting a price tag to the use of personal data. Using the monetary value of personal data as a basis for taxation, may be used as an incentive to influence the behaviour of companies, just as we use taxation for example to reduce energy consumption or pollution. “Pay to pry”, in analogy to “The polluter pays”. It might also nudge legislators to show more restraint with surveillance laws, if the actual costs of storing and processing data has to be borne by the legislator (i.e. the national budget) rather than by the companies that are now obliged to store data on behalf of the authorities (like telecoms providers, banks, air line carriers, etc).
Competition rules are also an important tool for strengthening data protection. Most people actually do care about their privacy, a lot even. And companies are slowly beginning to understand that their customers are unhappy about their privacy being violated and their data not being protected. But given the heavy market dominance, near monopolies, of a handful of (American) internet giants, users have very little choice. Some people are actually advocating the forced splitting up of internet giants, or imposing the same regulatory regime as for utilities. In any case, more competition would allow consumers to vote with their feet, and chose the provider that best protects their privacy and personal data. Europe must remove barriers in the internal market, and facilitate the emergence of European internet companies that attach value to high privacy protection and that can compete with American, Chinese or Russian internet giants.
When the Spitzenkandidaten start their campaigns for the job of Commission President, they must declare how they will protect our privacy and our personal data.