Privacy, Data Protection and Law Enforcement. Opacity of the Individual and Transparency of Power




SUMMARY: Introduction; 1 Principles of the democratic constitutional state; 1.1 The Recognition of Human Rights in their Double Function; 1.2 The Rule of Law; 1.3 Democracy; 2 The democratic constitutional state and the invention of two complementary legal tools of power control; 2.1 Limiting power through opacity tools; 2.2 Channelling power through transparency tools; 3 Privacy as a tool for opacity (creating zones of non-interference); 3.1 The negative role of privacy; 3.2 The positive role of privacy; 3.3 The non-absolute nature of privacy; 4 Data protection as a tool for transparency; 4.1 Introduction; 4.2 The rationale behind data protection; 4.3 Data protection as an opacity tool?; 4.4 The charter of fundamental rights of the european union; 5 The shift from opacity towards transparency in european human rights law; 5.1 European human rights law and the legality requirement; 5.2 The success of the legality requirement; 5.3 A critical comment about the strasbourg focus on the legality requirement; 5.4 The danger of proceduralisation; 5.5 A requirement fundamental to opacity: necessary in a democratic state; 6. Combining privacy and data protection 6.1 Combining the tools; 6.2 Determining the switch; 6.3 An example: camera surveillance; 6.4 A second example: passenger profiling; 6.5 Workable criteria?; Conclusion.


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Biografia do Autor

Serge Gutwirth, Vrije Universiteit Brussel (Bélgica).

Professor at the Faculty of Law and Criminology of the VUB, where he studied law, criminology and also obtained a post-graduate degree in technology and science studies. Today he is mainly focussing on the difficult articulations between law, politics, technology and ethics with regards to concrete emerging issues (e.g. data protection, S&M, gene editing, [...]). Since 2017 he started doing research on the resurgence of the commons. In 1999 Gutwirth has founded the VUB-Research group on human rights (HUMR), which he chaired until 2003, after which his colleague Paul De Hert took over. After obtaining the fellowship in October 2003 he founded the VUB-Research group Law Science Technology & Society (LSTS) which still (co-)chairs. Today, with more than 30 researchers at all levels of experience, LSTS has become a prominent European research institute. Next to thisGutwirth has been Vice-Dean of the Faculty (2012-2018), Vice Chair of the VUB’s Research Council from 2002 to 2013, (co-)Director of LSTS (2003-[...]) and Chair of the Department of Interdisciplinary Studies of the law (JURI) from October 2018 on.

Paul De Hert, Vrije Universiteit Brussel (Bélgica).

Prof. Paul De Hert’s work addresses problems in the area of privacy & technology, human rights and criminal law. A human rights approach combined with a concern for theory is the common denominator of all his work. In his formative years, De Hert studied law, philosophy and religious sciences (1985-1992). He is Director of the Research group on human rights (FRC) and Vice-Dean of the Faculty and former Director of the Research group Law Science Technology & Society (LSTS), and of the Department of Interdisciplinary Studies of Law.He is board member of several Belgian, Dutch and (other) international scientific journals such as The Computer Law & Security Review (Elsevier), The Inter-American and European Human Rights Journal (Intersentia) and Criminal Law & Philosophy (Springer). He is co-editor in chief of the Supranational Criminal Law Series (Intersentia) and the New Journal of European Criminal law (Sage). Since 2008 he has edited with Serge Gutwirth, Ronald Leenes and others annual books on data protection law (before Springer, now Hart) that, – judging sales numbers, quotations and downloads, attack a massive readership and have contributed to creating the legal, academic discipline of data protection law. De Hert is now series editor of The  Computers, Privacy and Data Protection  series, now published by Hart.




Como Citar

Gutwirth, S., & De Hert, P. (2022). Privacy, Data Protection and Law Enforcement. Opacity of the Individual and Transparency of Power. Direito Público, 18(100).