Data Security: A Fundamental Right in the e-Society?

Abstract

The birth of the modern network society and the strengthening of the idea of the constitutional state in Europe have occurred largely at the same time. This juxtaposition, although more accident than design, obligates us to examine from the legal perspective the tension between the array of opportunities (e.g., convergence) and new risks which the network society brings and the legal effectiveness of the constitutional state. The prevailing attitude towards data security offers an illuminating example of the new encounter between technology and law. A look at legislation and legal practice in this area reveals a variety of approaches. I present these and go on to argue for a position whereby data security can and should be assessed in terms of fundamental rights. We have a right to data security in the information infrastructure. At the same time, it must be pointed out that, if we are to avoid the potential risks involved, data security must quite literally be security, whereas legal regulation strives for certainty. When we attempt to forestall risks, the degrees of security and certainty needed at any given time should, in the final analysis, be assessed from the standpoint of fundamental rights.