21 May 2015

Big Data

Dear Readers,

The term «Big Data» as a keyword has been subject to constant change in the last years. Basically, it indicates amounts of data that are too big, too complex or changing too fast to be registered and evaluated with traditional methods, respectively by hand. Today, in addition technologies for the extraction of information are increasingly named big data. Data collections, ascertainments and evaluations entered almost every area of life, big data can take data from nearly all sources: electronic communication in private or on business, authorities, companies, hospitals, schools et cetera. Targets of heavy criticism are claims from industry and authorities for comprehensive access on private data. These claims are increasingly in conflict with personal rights.

More than 40 years ago, Stanley Kubrick showed in his movie «2001: A Space Odyssee» the computer of the future as an artificially intelligent – almost human – creature. Introductory to the topic «Big Data», Hanspeter Thür asks himself the following questions: Where are we today, 14 years after Kubricks deadline? Was this a realistic vision or did it remain an innocent science fiction? How significant is privacy in the era of Big Data?

Astrid Epiney disassembles the existing data privacy laws and concludes that the applicability of the Federal Act on Data Protection is afflicted with notably big insecurities due to the very nature of Big Data. She concludes that legislative action is required. Robert G. Briner even calls the data protection laws «toothless paper tigers», which are not capable to handle Big Data properly. He demands: Information as an economic value should have a proprietor who can dispose about it according to property law.

I myself ask the fundamental question: «What changes with Big Data?» What kind of value is created by Big Data? Which paradigm shifts, chimeras and illusions are we dealing with? And in which areas new needs for regulation may emerge?

Several contributions are dealing with re-identification of anonymised personal data respectively de-anonymisation. Whilst Michal Cichocki brings light into different data protection aspects of Big Data and gives a review on the data protection principles of perceptibility, appropriation, comparativeness and acceptance, Rolf H. Weber and Dominic Oertly concretely demand a cooperation of organisation,engineering and law to minimize risks in the processing of data. They recommend a stronger focus on risk orientation (depending on the area), plus limitations on the publishing of anonymised data, and improved transparency. These measures can contribute to the reduction of the information gap between professionals and normal people and may fortify informational integrity of the person affected.

Against this background, the creation of a consistent legal terminology as well as semantic and Meta structure are important, as Erich Schweighofer explains. In addition, for an appropriate use of data, there is a need of proportionate and purposeful networking that can not be personal. According to Erich Schweighofer, new identity systems, that permit a certain anonymisation within sufficient integration, are inevitable. Transparency is then no longer a fiction, but solvable in an equitable way to society – in the magical triangle of Big Data, Open Data and Data Protection.

Focusing on health data, Roland Mathys explains, which consequences result from the qualification as particularly sensitive personal data in the Big Data discussion. The area of data elevation and evaluation in the automobile industry as well as the ongoing fight about data sovereignty is analysed by Max von Schönfeld. Sabine Wieneroiter and Daniel Wieneroiter are dealing with data acquisition in schools, especially in E-Learning. On the one hand, this enables the providing of tailored teaching and learning contents, on the other hand privacy risks are created.

From Canada’s point of view, Ann Cavoukian, Michelle Chibba, Graham Williamson and Andrew Ferguson are investigating, how the upcoming attribute-based access control technology can assist in protecting against unauthorized access to personal data in a Big Data context. From the Czech perspective, Jakub Míšek detects snares in the converting of personal data and sees a collision between the current data protection frame and new technologies.

René Huber focuses on the Swiss cantons und asks in relation to the federation: Are the cantons allowed to participate in «Big Data»? Which legal frameworks are to be considered? And what about data protection in this case?

Finally, Klaus Mainzer shows the consequences of the calculation of the world: exponentially increasing computing capacity (Moore’s Law), exponentially increasing sensor numbers, exponentially increasing amounts of data et cetera.

And Dirk Helbing guides us from Big Data over Deep Learning and artificial intelligence to manipulative technology and – colourfully and complex – summarises the societal, economical, ethnic and legal challenges of the digital revolution.

In addition to the particular articles, for the first time in this issue presentations held on the Conference for Informatics and Law on 5 November 2014 on the topic of Big Data are published as podcasts in Jusletter IT:

Martin Dumermuth, Chancen und Risiken von Big Data (Podcast)
Erich Schweighofer, Die Transparenzfiktion in der Big Data Welt (Podcast)
Klaus Mainzer, Die Berechenbarkeit der Welt und ihre Folgen (Podcast)
Dirk Helbing, Gefahren von Big Data und Lösungsansätze (Podcast)
Maximilian Wolf, Big Data und innere Sicherheit: Grundrechtliche Rahmenbedingungen einer datenintensiven Sicherheitsarchitektur (Podcast)

In the future, such lectures will also be provided in Jusletter IT as podcasts. Additionally, you can already find further fascinating podcasts about data protection at podcasts.weblaw.ch/datenschutzforum.html.

I hope that we could contribute to the discussion about Big Data and wish you a enlightening reading, listening and watching with this issue of Jusletter IT.

Bern, in May 2015

Reinhard Riedl
Redaktion Jusletter IT

Big Data

Die Privatsphäre im Zeitalter von Big Data

Hanspeter Thür

In the movie «2001: A Space Odyssee» by Stanley Kubrick from 1968 an astronaut returns from a ride in space and asks for entrance into the space station. The computer refuses him: «I'm sorry. I'm afraid I can't do that», and the astronaut stays outside. More than 40 years ago, Kubrick showed the computer of the future as an artificial intelligent creature, as a machine with human features that can address against humanity. So where are we today, 14 years after Kubricks deadline? Was this a realistic vision or did it remain an innocent science fiction? (ah)

Big Data und Datenschutzrecht: Gibt es einen gesetzgeberischen Handlungsbedarf?

Astrid Epiney

In the course of technical development «Big Data» enables the analytic linking of large amounts of data that could also concern identifiable persons. The article shows the data protection regulations that must be observed in this regard (with a focus on the question of the applicability of the data protection laws) and on this basis throws up the question whether legislative action is needed. (ah)

Big Data und Sachenrecht

Robert G. Briner

The legal system is lagging behind technological developments. This truism of more than twenty years shows up when trying to catch the basic legal nature of big data. Information has a economic value, but no allocation in the law. The legal system will fail to grip big data by way of data protection law, all the more with the toothless paper tiger which many data protection laws in fact are, among them certainly that of Switzerland. Information as an asset would need to have a legal owner, who could use it like tangible property. The article analyses this line of thought.

Welchen Regulierungsbedarf schaffen die Paradigmenwechsel von Big Data?

Reinhard Riedl

In this article, varying types of Big Data, the several phases of the Big Data process and some of the most important application areas of Big Data are outlined. Then the paradigm shifts, chimeras and illusions coming along with Big Data are discussed, in order to derive how companies and administration can practice Good Governance and where regulatory action is needed. (ah)

Chancen und Risiken von Big Data (Podcast)

Martin Dumermuth

The introductory lecture of the Conference for Informatics and Law, which held place on 5 November 2014 on the subject «Big Data Governance», initially defines, what Big Data really is about. Business-critical information shall be diverted from huge amounts of data. Typically, these amounts of data come from different sources which are gathered in high speed. This is called «three Vs»: Volume, Variety and Velocity. The three big kinds of Big Data – classic Big Data, Freestyle respectively explorative Big Data and Big Data on the chart – are also explained and social and legal possibilities and problems are discussed. (ah)

Big Data und Datenschutz: Ausgewählte Aspekte

Michal Cichocki

The present article highlights selected data protection aspects of Big Data technologies. The author mainly analyzes legal issues as well as possible solutions in the context of a possible re-identification of anonymized personal data and the principles of data processing of purpose limitation, proportionality and consent.

Aushöhlung des Datenschutzes durch De-Anonymisierung bei Big Data Analytics?

Rolf H. Weber

Dominic Oertly

The analysis of large volumes of structured and unstructured data from manifold sources and the establishment of correlations between data in their processing leads to the risk that it becomes possible to draw conclusions from non-personal data to identifiable persons. Big data analytics can cause the de-anonymization of data. Even if technial procedures exist that make it difficult to establish a relation between anonymized data and persons, it must be acknowledged that these procedures are technically often complicated to apply. In order to achieve a risk minimization, an interdisciplinary cooperation between organization, technique and law must be realized.

Transparenzfiktion und Big Data

Erich Schweighofer

Big Data reflects the increased dynamics of today's world with enormous data needs. Transparency in this knowledge cloud remains a pre-fiction; despite "Google». Legal information provides a good example. On one hand, much is not yet available digitally; on the other hand, the available range of information is only usable if the semantics of legal language and legal meta data are handled. Efficient data use requires an appropriate and data protection friendly network of information with events, objects and anonymised person classes.

Die Transparenzfiktion in der Big Data Welt (Podcast)

Erich Schweighofer

For proper utilization of data, one needs a commensurate and goal-oriented networking, which represents a challenge for the privacy. Networking must not be personal. Hence, new identity systems that enable a certain anonymization with sufficient networking are required. Transparency is no more a fiction, but solvable in an equitable way to society; in the magical triangle of Big Data, Open Data and Privacy. (ah )

Was bedeutet Big Data für die Qualifikation als besonders schützenswerte Personendaten?

Roland Mathys

The ongoing discussion on data privacy around big data is currently dominated by the issue that big data analysis may result in the legal classification of non-personal data as personal data by building or re-establishing (e.g. after anonymization) a link to identified or identifiable individuals. It has up till now been far less debated whether, and on which conditions, «ordinary» personal data may become sensitive personal data in a big data context. This question shall be further explored in this paper, with a particular focus on health related data.

Daten – das neue Öl?!

Max von Schönfeld

The car is developing in increasingly speed from a solely use as a means of transportation to a mostly unexplored source for information and data procurement. This source has huge potential both in quantity and quality of the data. The question of the legal evaluation of the topic, which inevitably raises against the background of the conflict of interest between economical use and privacy, is still unclear. (ah)

Die «Kleinen» mit den großen Daten

Sabine Wieneroiter

Daniel Wieneroiter

The application of E-Learning in schools is continually expanding. The vast amounts of data collected opens – from an educational point of view – unexpected possibilities. Learning contents can be tailored for each individual student, however, this flood of collected data bears dangers – in particular from a data protection point of view. (ah)

The Importance of ABAC to Big Data: Privacy and Context

Ann Cavoukian

Michelle Chibba

Graham Williams

Andrew Ferguson

There is little doubt that Big Data is an increasingly important topic as more and more of our data is digitized. Large organizations were quick to realize the enormous potential of correlating vast amounts of data. As with many technology advances, there are issues to be addressed – including the significant potential for Big Data analysis to flaunt privacy rules and expose the analysts to liabilities. This paper considers the privacy issues relating to Big Data analysis and investigates how emerging attribute-based access control technology can assist in protecting against unauthorized access to personal data in a Big Data context.

Hidden Pitfalls in Personal Data Processing

Jakub Míšek

The article focuses on several principles of personal data protection legal framework and procedures of public bodies responsible for their legal enforcement, which are in a direct collision with new technologies and uses of information, like Big data. Relevant institutes and judicial rulings are analysed and thus is shown, how strict application of personal data protection rules can cause absurd situations disconnected from the needs of people living in the real world. In the third part of the article are offered methods, which could possibly help to solve analysed problems.

«Big Data», das kantonale Recht und der Datenschutz

René Huber

Today all the information about us ends up as digital data. The amount of data increases rapidly. Big Data tools provide strong instruments to analyze these data in order to gain new information and knowledge. Big Data is not only an issue for companies – but also for the public administration. The administration has countless databases containing data about citizens and firms. Is the public administration of the Cantons allowed to join the party? If so, what is the legal framework? And what are the implications of data protection? This report gives a short overview of the privacy aspects in the field of Big Data within the cantonal legal framework.

Die Berechnung der Welt und ihre Folgen

Klaus Mainzer

The topic «Calculation of the World and its Consequences» affiliates to my last book with the same title. Everything that has been discussed at the Conference for Informatics and Law in Berne is to be understood in light of the «Internet of Things». This is the second digital revolution. The first digital revolution was the «Internet of Persons», in which a world wide computer network was used for the communication between persons. In the «Internet of Things» subjects and objects are provided with communications interfaces (RFID-Chips, sensors et cetera) to communicate amongst each other: automobiles with their environment, work pieces in the industry and robots. (ah)

Die Berechenbarkeit der Welt und ihre Folgen (Podcast)

Klaus Mainzer

The Podcast is to be understood in the light of the «Internet of Things», the second digital revolution. The new world produces a huge amount of data. Which factors are effectively impelling this Big Data world? Exposed are four characteristics: 1. the exponential increase of computing capacity; 2. the exponential increase of sensor technology; 3. ascending data capacity; 4. the diversity of data. (ah)

Societal, Economic, Ethical and Legal Challenges of the Digital Revolution

Dirk Helbing

In the wake of the digital revolution we will see a dramatic transformation of our economy and societal institutions. While the benefits of this transformation can be massive, there are also tremendous risks. The fundaments of autonomous decision-making, human dignity, and democracy are shaking. After the automation of production processes and vehicle operation, the automation of society is next. This is moving us to a crossroads: we must decide between a society in which the actions are determined in a top-down way and then implemented by coercion or manipulative technologies or a society, in which decisions are taken in a free and participatory way. Modern information and communication systems enable both, but the latter has economic and strategic benefits.

Gefahren von Big Data und Lösungsansätze (Podcast)

Dirk Helbing

The podcast deals with the change, that society and economy are confronting. Irritating signals from an era of information like Bitcoin, discussions about Uber or NSA / Snowden et cetera are omnipresent and show the progression of the digital revolution. We need to understand this era’s new logic, since not only the existing amounts of data are duplicating each year. How can we reasonably cope with this? To stay economically flexible, it is important to monitor the long-term development. (ah)

Big Data und innere Sicherheit: Grundrechtliche Rahmenbedingungen einer datenintensiven Sicherheitsarchitektur (Podcast)

Maximilian Wolf

In the area of internal security the purpose of averting dangers like intelligent video surveillance, predicting policing and surveillance of social media (security-related communication, profiling) are increasingly becoming the focus of attention. Those purposes of averting have potential dangers in common, like systematic and automatic surveillance and evaluation that can lead to inappropriate results, discrimination, intransparency and burden of justification. The podcast confronts these endangerments with constitutional conditions. (ah)

TechLawNews by Ronzani Schlauri Attorneys

Wer ist Adressat eines Facebook-Postings?

Simon Schlauri

Acquisition Trumps License!?

Daniel Ronzani

Autonome Fahrzeuge

Simon Schlauri

Autonomous Contracts in Industry 4.0

Daniel Ronzani

News

Veröffentlichung von Videoaufnahmen eines Arbeitnehmers – Einwilligungserfordernis

Jurius

BAG – In accordance with § 22 KUG, effigies by employees can only be published with their acceptance. This must be in writing. A restrictions-free acceptance of an employee does not automatically expire with the end of the employment If there is a sufficient reason it can be repealed. (Judgement 8 AZR 1011/13) (ah)

Haftung eines Hotelbewertungsportals für unwahre Tatsachenbehauptungen eines Nutzers

Jurius

BGH – The First Civil Chamber, which is responsible for competition law amongst other things, decided on 19 March 2015, that the operator of a hotel rating portal is not liable for an infringement of § 4 no. 8 UWG or § 3 Abs. 1 UWG on terms of an omission of false factual claims from a user on her portal. (Judgement I ZR 94/13) (ah)

Zulässigkeit der «Tagesschau-App»

Jurius

BGH – The First Civil Chamber, which is responsible for competition law amongst other things, engaged itself with the permissibility of the «Tagesschau-App» on 30 April 2015. (Judgement I ZR 13/14) (ah)

Zur Zulässigkeit elektronischer Leseplätze in Bibliotheken

Jurius

BGH – The First Civil Chamber, which is responsible for copyright amongst other things, decided on 16 April 2015, under which circumstances electronic books can be made available at electronic reading areas in libraries even without the permission of the copyright holder. (Judgement I ZR 69/11) (ah)

Zulässigkeit einer «Funkzellenabfrage» zur Strafverfolgung

Jurius

OGH – The disclosure of data of a message (according to § 135 Abs. 2 StPO) that ties in with a location detection («radio cell inquiry») is still permissible considering the principle of proportionality (Judgements 12 Os 93/14i and 12 Os 94/14m) (ah)

Facebook-Post: Freundeskreis ist nicht «Bevölkerung»

Jurius

BGer – A threat towards facebook friends can not be prosecuted as «Frightening of the Population». The circle of friends and acquaintances both in the real and the virtual world shall not be considered as «population». The Federal Court repeals the imprisonment of a man by the High Court of the Canton of Zürich. (Judgement 6B_256/2014) (ah)

Strategie für den digitalen Binnenmarkt: Europäische Kommission vereinbart Tätigkeitsbereiche

Jurius

Digital technology is part of everyday life. From studying to watching films, buying or selling online to connecting with friends or your doctor – the internet is a goldmine of digital opportunities. But every day in the EU people and companies run into many barriers – from geo-blocking or cross-border parcel delivery inefficiencies to unconnected e-services.