Opinion & analysis

Collective challenges and opportunities in data protection: A Latin American perspective

This blog is part of a series on collective data rights in Latin America. Read additional perspectives from Mariana Valente and Francisco Brito Cruz of InternetLab and Carlos Cortes of Linterna Verde , and join our session at RightsCon on Thursday, June 10, as the authors of this series come together for a discussion on collective data rights in the region.

By Javier Pallero, Access Now

Martin Tisne's paper, "The Data Delusion," takes a very welcome look at the social and collective impacts of the use of personal data in new technologies. It merits opening a discussion on incorporating collective protections for data holders, taking into account the opportunities and challenges that this idea presents in regions such as Latin America.  

A collective approach

The major internet platforms (currently in the eye of the debate storm) are not alone in using big data to optimize their products and maximize their profits. Companies in other sectors and governments do so as well, making the provision of essential services (and even humanitarian aid) increasingly dependent on the mass exchange and analysis of personal data. The excuse for this is the alleged search for efficiency, agility and convenience, with the violation of individual and collective privacy as the price.  

To date, as Martin notes in his paper, most protective legislation has focused on individual impacts and remedies. It is time we took other steps to address these new collective challenges. The collective threat could affect other areas as technology spreads to new parts of human interaction and in some cases intrudes on our intimate and emotional lives.  

Even the possible solutions are not without dangers. The "privacy-friendly" alternatives offered by various actors bring their own problems. A recent example from the online advertising industry is to replace the current cookie-cutter tracking model with other data aggregation mechanisms that supposedly “anonymize” groups to achieve more targeted advertising directed at groups with similar interests. Some of these ideas not only fail to address individual tracking problems but also pose insidious new risks to the privacy of entire vulnerable groups, particularly as they start to be used on a mass scale, becoming increasingly inescapable and opaque. In addition, the actors implementing them control various aspects of digital interactions through a multiplicity of products, negating any possible effort at anonymity. 

Legislative and institutional challenges

Regulators must consider the numerous collective impacts at stake. Martin's proposal is solid regarding the scrutiny of automated data processing systems through strong transparency measures. Independent, public and rights-based scrutiny is essential to addressing this problem. It must be part of clear, evidence-based regulations written in a participatory way. It is increasingly clear that the law has a key role to play in this area.  Public or private initiatives based on ethics or other inappropriate considerations (such as risk assessment) are insufficient and counterproductive. 

From a Latin American perspective, some preliminary considerations are important to bear in mind. A collective vision of the impacts of the exploitation of personal data will meet the same challenges that the region has faced with regard to data protection in its individual “classic” conception. If an attempt isn't made to ensure the viability of basic protection and control mechanisms, new efforts will be wasted and relegated to novelties for academic discussion.  

In practical terms, personal data protection in many countries in the region fall considerably short with regard to accessibility, independence, suitability, and the resources available to the data protection authorities. This does not even take into account the failure to update comprehensive regulations on the matter or, in some cases, the complete absence of such measures. 

A political decision

These challenges are political in nature. The state defines operational and legislative priorities that can protect or jeopardize fundamental rights. In addition, despite being a fundamental actor, the state often exempts itself from its inescapable obligations regarding acts of its own that may violate privacy.  

There are two clear directions to follow on this issue: an individual and collective vision for comprehensive and guaranteed data protection, or a continuation of the dangerous trend of incorporating invasive technologies in the hope of improving public management without concern for rights.  

Unfortunately, problems with contact tracing applications, mass analysis of social media information, surveillance methods that rely on facial recognition, and other worrisome issues have become increasingly common in various Latin American countries. The digitalization of the state and increased data exploitation by the private sector have created an urgent need for protection. They offer an opportunity to change course and guide state efforts to align with today's challenges.