[OpenID] German court defines fundamental digital privacy right

Sat Mar 15 19:33:02 UTC 2008

Dear IDgang members,

This new (virtual) personality fundamental right may be the most significant
cyber related development in the first years of the XXI century...!, because
it is the first significant step on the natural process of extending human
rights to cyberspace.

This new fundamental (human) right, fully extended(**), will bring not just
more right´s and protection, but also will create more value, specially at
the individual level (people owning, developing and *transacting *with his
virtual personality) , which will generate economic development. Also it
will affect contracts between companies and users, that sometimes will imply
changing the business model...(***)

The people (not just the citizens...) living in Germany today,  are the most
cyber protected legally. And since Germany is in legal developments, what
Brasil is in football, it is just a question of time for this new
fundamental right to be replicated in other countries.  :-)

*It is no coincidence that I visited the German Constitutional Court in
2004, at Karlsruhe, immediately after the the virtual personality
fundamental right was presented in the Costa Rican Congress.

*Obviously, the main reason for the proliferation of this new human right,
is that worldwide, there is a need to extend fundamental rights to
cyberspace, and Germany now is speeding this process.

Well, let´s continue enjoying this very long process....     ;-)

Below, some comments to this thread.

(**) By fully extended I mean the *Costa Rican Congress virtual personality
fundamental right version*, which besides *data (content)*, includes
(virtual) *presence* and *projection, *and the right to exist in cyberspace.

An example of implementing *presence*, is extending the Federal Junk Fax Law
http://www.keytlaw.com/faxes/junkfaxlaw.htm to all other channels, like
telephone, email, SMS, MMS, blogs, social networks, voicemail, etc, but also
RFID, cellular tracking and alike. This extension means not just protecting
more channels, but protecting it as a fundamental right, which needs the US
Supreme Court or US Congress involvement.

An example to the right to exist in cyberspace is giving bank accounts (a
bank account is a subcomponent of a virtual personality) to the poorest
people in the planet so they can have more probability to get funds. All
this of course as a component of an integral process to fight extreme
poverty. More here:
http://web.archive.org/web/20070704102907/http://virtualrights.org/files/project_overview_latest.pdf

More about projection here:
http://wiki.idcommons.net/index.php/Virtual_personality
Paul Trev., if possible, please be kind to update the links, because when
moving to the wiki, the links where not updated.

(***) For an example of how MSN, Hotmail and Google may need to change their
user contracts, read the study I sent in this mailing list.

============================================================
Tim
 Just curious: Does anyone have any thoughts on what impact (if any) a basic
human right to use a computer without fear of being observed may have on
identity management?
Jaco: It will make identity management more mainstream!.
Anything that is a fundamental right becomes massive and mainstream.

Tim:Will developers and vendors have to react?
Jaco:Yes.

Tim:Is OpenID the right answer?
Jaco:Yes, but also any others that promote and enhance this new human
right!.

Tim: And also: Will courts and lawmakers in other countries evetually follow
suit?
Jaco: Yes, because worldwide there is a need to extend human (fundamental)
rights to cyberspace.

Tim:Or is this just another example of German perfectionism (or is it
paranoia?) at work?
Jaco:No. It just happens that Germans are the leaders in legal developments,
and later, other countries follow them.

====================================================================
Tim:
> As many of you will have heard the German Consitutional Court just ruled
that law enforcers need judicial approval before spying on the PCs and
emails of citizens.

Tony:
This is pretty much the norm in most Western countries.
The "best protected" characterization seems to ignore
the facts here.

Tim:
The important issue is that the court draws a clear line in the sand about
"core privacy" which no one, under any circumstances, may infringe upon. By
defining this as a basic right of every citizen, they give it enormous legal
weight and in effect make it part of what German law defines as "human
dignity", which is the supreme principle (article 1!) of the German
Constitution.

Jaco:
Exactly. For example, the USA has the Federal Junk Fax Law, which protect
the virtual presence (virtual personhood  =  content + presence +
projection), but it is not a fundamental right..., yet!.

Tim:
Other European states are much more cavalier about stuf like this, and from
what we hear about the US where a President can get away with just about
anything in the line of surveilance, it does seem as though Germany has gone
one step further.

Jaco:
Definitely!. Germany is the first country in the world, again..., in
implementing such a big legal step further, and like the other legal
developments it has made, it is just a question of time for others to
implement.
===============================================================================================

:
Tim Cole wrote:
>> And also: Will courts and lawmakers in other countries evetually
>> follow suit? Or is this just another example of German perfectionism
>>  (or is it paranoia?) at work?

Tony wrote:
> The latter

Ralf wrote:.
I am not so sure about this. Don't forget, Germany invented the concept of
"data protection" in 1970, and it has spread all over the world now. Also,
the 1983 construction by the German constitutional court of a basic right
to "informational self-determination" is behind many current debates, e.g.
the "7 laws of identity" or even the attempt to write a charter of rights
for users of social networks.

I think that the German court was just the first one that officially
acknowledged that parts of our central nervous system, including our
memory, but also our ability to hear, see and so on, are increasingly
taken over / enhanced by or integrated with computer systems. Protecting
our hard drives is similar to protecting our thoughts.

Jaco:
Ralf, you also did not mention that the Corporation legal fiction was
invented in Germany in the XVI century.
======================================================================

Tony wrote:
> The rather unique German construct will also likely change fast after
> the next major attack.
Ralf wrote:
Sorry about that, Tony, but the fundamental rights spelled out in the
first 20 articles of our constitution are not subject to change. The court
has made this clear in a number of occasions over the last decades.

Jaco: Yes, the same is true for most countries. The next step will be EU
adoption, later, adoption by countries heavily influenced by the German and
European legal developments and finally all the others.

======================================================

Tim wrote
> and does it's protection extend to other areas and devices (the court
> only talks about "PCs in private homes",
Ralf wrote:
No. They also mention laptops, PDAs and mobile phones. It does not matter
where the information is stored, that is also a very important point in
the decision, because it goes beyond the protection of the home and
acknowledges that in an interconnected world, the data itself is
protected, not only the private physical space.

Jaco: Great!, this brings ubiquity, a basic component of virtuality. The
data (content) ubiquity protection, is a step forward to arrive to ubiquity
(virtual) presence protection.
============================================================================

Ralf wrote:
I strongly recommend to our German-speaking colleagues to actually *read*
the decision. It is pretty long (108 pages or so), but very clear and
really worth it.
<
http://www.bundesverfassungsgericht.de/entscheidungen/rs20080227_1bvr037007.html
>
Jaco: It is interesting to note that both the German text and the Costa
Rican text use the term "personality" and not "identity" or other.
=====================================================================

I wrote an english summary of the most important points:
<
http://bendrath.blogspot.com/2008/02/germany-new-basic-right-to-privacy-of.html
>
Jaco: Thank you Ralf!!.    :-)
====================================

Tony wrote:
> Your summary seems to suggest this is a constraint on
> German government action.  Does it apply to private action
> as well?  Companies?  Individuals outside Germany?
Ralf wrote:
In Germany, fundamental rights do have an influence on the relations
between private parties, as I just learned from a lawyer. Not sure how far
this goes and how courts deal with it, but it certainly is not irrelevant.

Jaco: Worldwide fundamental (human) rights influence not just Governments,
but also
Companies, NGO´s and people.
======================================================
Tony wrote:
> Can a citizen waive these rights?
Ralf wrote:
I don't know.
Jaco: Yes, and not just citizens, also humans/people who are not citizens.
That´s why it is called human rights and not citizens rights...    ;-)
==============================================

Tony wrote:
> may be an effective isolation of German
> citizens as others around the world refuse to deal with
> them for fear of impacting their "fundamental digital
> privacy right."
Ralf wrote:
I expect other countries and supreme courts to follow this line of
reasoning instead.

Jaco: Yes Ralf, this will happen. Worldwide there is a need to extend
fundamental (human) rights to cyberspace.

==============================================================

PB wrote:
Essentially one is
building conditional access into one's data, and defining which parts
need to be private. If all goes well,
then a space is established in which one can work within, and gives one
the ability to create value,
which in turn benefits society as a whole.

Jaco: Yes!, that´s why this fundamental right will deeply affect not just
privacy, but also the economy!, because of the incredible amount of value
that it will generate and create!.
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