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REPORT
Ethics Advisory Group
2018
Towards a digital ethics EDPS Ethics Advisory Group
EDPS Ethics Advisory Group | Report 2018
Foreword
When I first espoused ethics three years ago, while the legislative procedure for the
adoption of the EU’s General Data Protection Regulation was still underway, it is fair
to say my initiative raised a few eyebrows.
Today, ethics and data protection are intertwined like never before and I observe
an ever closer convergence between the two. Many issues related to ethics involve
personal data; data protection authorities now face ethical questions that legal
analysis alone cannot address.
Ethics and the law each have an important role in our societies. Convergence allows us
to put the human being, their experience and dignity at the centre of our deliberations.
This report by the members of the EDPS’s Ethics Advisory Group engages thoughtfully
with this question. The report presents the main shifts provoked by the digital
revolution and the impact they have on the values we hold dear.
I am grateful to the group for helping to advance this still young debate on digital
ethics. The EDPS will continue, over the coming months and through the 40th edition
of the International Conference of Data Protection and Privacy Commissioners
which we host in October, to consider more deeply and widely how we can make
technology work in the interests of the dignity of the human being.
Giovanni Buttarelli
European Data Protection Supervisor
1
EDPS Ethics Advisory Group | Report 2018
The Ethics Advisory Group (EAG) is composed of six Members:
J. Peter Burgess holds the chair in the Geopolitics of Risk at the
Ecole Normale Supérieure, Paris, is Professor at the Centre for Ad-
vanced Security Theory (CAST) of the University of Copenhagen,
and member of Interdisciplinary Research Group on Law, Science,
Technology and Society Studies (LSTS) of the Vrije Universiteit
Brussel. Trained in engineering, literary studies, political science and
philosophy, his research and writing focus mainly on the theory and
ethics of security and insecurity.
Luciano Floridi is Professor of Philosophy and Ethics of Information
and Director of Research of the Digital Ethics Lab, Oxford Internet
Institute, University of Oxford. He is also Turing Fellow and Chair of
the Data Ethics Group of The Alan Turing Institute. The philosophy
and ethics of information have been the focus of his research for a
long time, and are the subject of his numerous publications, includ-
ing The Fourth Revolution: How the Infosphere is Reshaping Human
Reality (Oxford University Press, 2014), winner of the J. Ong Award.
Jaron Zepel Lanier is an American computer philosophy writer,
computer scientist, visual artist, and composer of classical music. A
pioneer in the field of virtual reality, Lanier and Thomas G. Zimmer-
man left Atari in 1985 to found VPL Research, Inc., the first company
to sell VR goggles and gloves. In the late 1990s, Lanier worked on
applications for Internet2, and in the 2000s, he was a visiting scholar
at Silicon Graphics and various universities. From 2006 he began to
work at Microsoft, an Interdisciplinary Scientist in Microsoft Research
from 2009 to 2018, and currently working in the Office of the CTO,
Prime Unifying Scientist (OCTOPUS).
2EDPS Ethics Advisory Group | Report 2018
Aurélie Pols is an economist/econometrist and statistician by
education and has been involved in the analysis of data from the
very beginning of this activity. She is an important actor in the field
of “digital data”. She runs her own consulting business in Spain after
selling her own first start-up company a few years ago.
Antoinette Rouvroy is Doctor of Laws of the European Uni-versity
Institute (Florence), she is permanent research associate at the Bel-
gian National Fund for Sci-entific Research (FNRS), senior researcher
at the Research Centre Information, Law and Society, Law Faculty,
and Professor of “Questions of applied ethics after the digital turn» in
the Department of Philosophy at the University of Namur (Belgium).
In her writings, she has addressed, among other things, issues of
privacy, data protection, non-discrimination, equality of opportu-
nities, due process in the context of “data-rich” environments (the
so-called genetic revolution, the so-called computational turn)
with an ap¬proach combining legal and political philosophy. Her
current interdi¬sciplinary research interests revolve around what
she has called algorithmic governmentality. Under this foucauldian
neologism, she explores the semiotic-epistemic, political, legal and
philosophical im¬plications of the computational turn (Big Data,
algorithmic profiling, industrial personalisation) and the impacts of
automated algorithmic processes on human evaluations, decisions
and judgments.
Jeroen van den Hoven is University Professor and Professor of
Ethics and Technology at Delft University of Technology. He has
written extensively on ethical aspects of information technology.
He is Founding Editor in Chief of the Journal Ethics and Information
Technology, since 1999. In 2009, he won the World Technology
Award for Ethics as well as the IFIP prize for ICT and Society for his
work in Ethics and ICT. Jeroen van den Hoven was founder, and until
2016 Programme Chair, of the Dutch Research Council on Respon-
sible Innovation. He chaired the EU expert group on Responsible
Research and Innovation (RRI) and he is member of the European
Group on Ethics (EGE) of the European Commission.
3EDPS Ethics Advisory Group | Report 2018
Authors of this report
J. Peter Burgess, Chair
Luciano Floridi
Aurélie Pols
Jeroen van den Hoven
With thanks to
Jaron Lanier & Antoinette Rouvroy
for their valuable advice and contributions
4EDPS Ethics Advisory Group | Report 2018
Preface analyse current and future paradigm shifts
which are characterised by a general shift from
The EDPS Ethics Advisory Group (EAG) has analogue experience of human life to a digital
carried out its work against the backdrop of one. On the other hand, and in light of this
two significant social-political moments: a shift, it seeks to re-evaluate our understanding
growing interest in ethical issues, both in the of the fundamental values most crucial to the
public and in the private spheres and the im- well-being of people, those taken for granted
minent entry into force of the General Data in a data-driven society and those most at risk.
Protection Regulation (GDPR) in May 2018.
For some, this may nourish a perception that The objective of this report is thus not to gen-
the work of the EAG represents a challenge to erate definitive answers, nor to articulate new
data protection professionals, particularly to norms for present and future digital societies
lawyers in the field, as well as to companies but to identify and describe the most crucial
struggling to adapt their processes and rou- questions for the urgent conversation to
tines to the requirements of the GDPR. What come. This requires a conversation between
is the purpose of a report on digital ethics, legislators and data protection experts, but
if the GDPR already provides all regulatory also society at large - because the issues iden-
requirements to protect European citizens tified in this report concern us all, not only as
with regard to the processing of their per- citizens but also as individuals. They concern
sonal data? Does the existence of this EAG us in our daily lives, whether at home or at
mean that a new normative ethics of data work and there isn’t a place we could travel
protection will be expected to fill regulatory to where they would cease to concern us as
gaps in data protection law with more flexible, members of the human species.
and thus less easily enforceable ethical rules?
Does the work of the EAG signal a weakening
of the foundation of legal doctrine, such as the
rule of law, the theory of justice, or the funda-
mental values supporting human rights, and
a strengthening of a more cultural approach
to data protection?
Not at all.
The reflections of the EAG contained in this
report are not intended as the continuation of
policy by other means. It neither supersedes
nor supplements the law or the work of legal
practitioners. Its aims and means are different.
On the one hand, the report seeks to map and
5EDPS Ethics Advisory Group | Report 2018
1. Introduction values may be understood as part of the new
data protection ecosystem.
The EDPS Opinion Toward a new digital ethics
(2015) grounds the ‘new digital ethics’ in the
Mandate
fundamental right to privacy and the protec-
tion of personal data, understanding both as It is this new ecosystem that is the object of
crucial for the protection of human dignity1. reflection for the EAG, as described in the
The Opinion cites dignity—the bedrock of EDPS 2015-2019 strategy, with the mandate
the European Union Charter of Fundamentals ‘to explore the relationships between human
Rights—as the signpost for the new digital rights, technology, markets and business
ethics. It highlights the interdependence of models in the 21st century’2. This new data
technology and human values, stressing that, protection ecosystem stems from the strong
while technological evolution is informed roots of another kind of ecosystem: the Euro-
by human values, those same values do not pean project itself, that of unifying the values
remain untouched by technologies. drawn from a shared historical experience with
a process of industrial, political, economic and
The EDPS Opinion identifies several tech- social integration of States, in order to sustain
nological trends that require a rethinking of peace, collaboration, social welfare and eco-
the relation between technology and human nomic development. This project is sustained
values, thus calling for the formulation of a by the common destiny of all European citi-
‘new digital ethics’: big data generated from a zens and by the principles and practices em-
variety of sources, from public administrations bodied in the European institutions, including
and private companies, social networks and the European Data Protection Supervisor.
other online platforms, the internet of things
and networked sensors, cloud computing, and With the digital age, European ambition has
artificial intelligence, in particular machine evolved rapidly. And yet, the fundamental
learning. These digital technologies require freedoms and values set out in the EU treaties
what the Opinion calls a ‘big data protection and accords of the last 60 years, and culminat-
ecosystem’: an interactive and accountable ing in the Charter of Fundamental Rights of
assemblage of ‘future-oriented regulation’, the European Union, ratified in 2000, remain
‘accountable controllers’, ‘privacy-conscious the same. However, bridging the gap between
engineering’, and ‘empowered individuals’. traditional principles and a new digital world,
with all its social, legal, and economic implica-
This report aims to provide a preliminary tions, is daunting. There is a distinct need to
account of the socio-cultural shifts that have fundamentally revisit the way ethical values
taken place in concert with these technolog- are understood and applied, how they are
ical trends, and to examine how European changing or being re-interpreted, and a need
1 European Data Protection Supervisor (2015) Towards a new 2 European Data Protection Supervisor (2015) Leading by
digital ethics: Data, dignity and technology. Opinion 4/2015. Example: The EDPS Strategy 2015-2019, p. 18.
6EDPS Ethics Advisory Group | Report 2018
to take stock of their relevance to cope with with that of emerging data processing systems
the new digital challenges. (machine learning and deep learning algo-
rithms, for example), can have the effect of
The right to data protection may have so far distancing supervisory authorities and un-
appeared to be the key to regulating a digit- dertakings from the meaning and the spirit
ised society. However, in light of recent tech- of the right to data protection. Ethics allows
nological developments, such a right appears this return to the spirit of the law and offers
insufficient to understand and address all the other insights for conducting an analysis of
ethical challenges brought about by digital digital society, such as its collective ethos, its
technologies. Personal data protection claims to social justice, democracy and per-
regimes, like the GDPR, remain the privileged sonal freedom.
instruments for the governance of data flows
and data processing. These remain valuable The General Data Protection
for the protection of personal data in line with Regulation
classical data processing. And yet, they appear
The work of the Ethics Advisory Group has
inadequate to address the unprecedented
been carried out in anticipation of the General
challenges raised by the digital turn. In par-
Data Protection Regulation (GDPR), which will
ticular, the tensions and frequent incompati-
become fully applicable on 25 May 20183. The
bility of core concepts and principles of data
GDPR supersedes the 1995 Data Protection
protection with the epistemic paradigm of big
Directive, and strengthens and harmonises the
data suggest limits to the GDPR even prior to
protection of personal data within the Europe-
its application.
an Union. It also expands the territorial scope
of the EU data protection regime, by bringing
For example, the principles of purpose limi-
a large number of overseas businesses and
tation, data minimisation, and data retention
other organisations within its reach. The GDPR
may be at odds with some premises and appli-
is itself a true product of globalisation, in that
cations of big data aiming at the almost limit-
it considers not only the location of the data
less collection and retention of any informa-
processing, as in the current Directive, but also
tion that exists in digital format and with the
whether personal data relating to individuals
fact that the purpose data may not be known
located in the EU are being processed, regard-
before an algorithmic analysis is carried out.
Indeed, the purposes of algorithm-driven big
data analysis is often to discover otherwise
invisible patterns in the data, rather than to
apply previous insights, test hypotheses, or
3 Regulation (EU) 2016/679 of the European Parliament and
develop explanations. of the Council of 27 April 2016 on the protection of natural
persons with regard to the processing of personal data and
Moreover, the technical sophistication and on the free movement of such data, and repealing Directive
complexity of data protection rules, together 95/46/EC (General Data Protection Regulation), OJEU L119,
04/05/2016.
7EDPS Ethics Advisory Group | Report 2018
less of where the controller is established in name of something that can neither be cal-
the world. culated nor computed.
While some of the EAG’s deliberations concern By providing interpretive tools, arguments and
some of the same issues addressed by the a vocabulary of ethics for the digital age the
GDPR, its scope, focus, and purpose is dif- EAG seeks to help the data protection commu-
ferent. Where the GDPR is concerned with nity to reassert the core values that underpin
regulating the processing of personal data, its principles and to ground the application
the EAG is interested in understanding the of data protection principles in a way that is
assumptions about both the ethical status relevant to the everyday experiences of Eu-
or personhood of the individuals whose ropean citizens.
data is in question in the GDPR and the way
these assumptions challenge and appeal to Scope and aim of the report
a reinterpretation for the digital age of the
This report seeks to propose terms and con-
fundamental European values and principles
cepts that contribute to a constructive debate
that the GDPR seeks to protect. Ethical reflec-
about the future of ethics in a full-fledged
tion developed by the EAG seeks to provide
digital society. It identifies and clarifies some
concepts and arguments for dealing with
of the ethical questions that emerge in the
regulatory issues that were not and cannot
application of data protection regulations to
be adequately foreseen. By providing some
the new forms of data collection and process-
interpretive tools, arguments and a vocabulary
ing and to the new economy that has rapidly
for a digital ethics, the EAG seeks to help the
formed around it.
data protection community to make relevant
the core values that underpin its work and
The EAG expressly avoids an instrumental ap-
to ground the application of data protection
proach to ethics of a kind that would result
principles in a way that is more relevant to the
in an ethical checklist or set of measures that,
everyday experiences of European citizens.
once accomplished, would essentially exhaust
ethical reflection and release its practitioners
In this sense, the EAG has sought to develop
from further discussion. The EAG wishes to dis-
an understanding of human action—behav-
courage approaches to ethics governance that
iour, decision-making, judgment, conduct,
equate data protection with the application
etc.—without taking for granted that these
of do’s and don’ts. On the contrary, it seeks
can be digitally captured, computed, calcu-
to encourage proactive reflection about the
lated or optimised. The EAG has focused on
future of human values, rights and liberties,
understanding conduct that resists digitisa-
including the right to data protection, in an
tion, conduct as contingent, fortuitous, unpre-
environment where technological innovation
dictable, even risky. It sees the ethical moment
will always challenge fundamental concepts
as the moment of engaging autonomy in the
and adaptive capabilities of the law. It seeks
to inspire all relevant stakeholders to identify
8EDPS Ethics Advisory Group | Report 2018
the areas where ethical problems not only with equal facility. There is significant variation
emerge from the development and operation in what segments of life and experience can
of today’s digital technologies, but integrate be inserted into a digital framework, what
in both their designs and business planning information can be transformed or translat-
reflection about the impact that new technol- ed to a globally digestible form, what knowl-
ogies will have on society, generating their edge can produce added-value in the digital
own guidelines for addressing them tomor- economy. Just as there is a limit to what can
row while remaining vigilant to what their be globalised in the age of globalisation, there
own guidelines had not foreseen, when by is an inherent limit to what can be digitised
all accounts the premise, aims and impact will in the digital age. Indeed, the question of the
be astonishingly different from today. Ethical limit of digitisation is at the very heart of social
foresight, like technological foresight, will be and political debate today. The starting point
the key to commercial success in the digital of any ethical reflection on the digital age is
economy. the simple observation that human beings
are not identical to their data, despite the in-
European data protection in an creasing precision with which human beings
interconnected world can be digitally modelled, their qualities and
properties catalogued, their patterns system-
More than any other human enterprise, the
atised and their behaviour predicted. On the
wide-reaching circulation of data through
contrary, they may be understood in an in-
worldwide networks, the global reach of its
finite number of ways.
power to set standards across national borders
and its trade and use in the business of every-
The work of the EAG is founded on the belief
day life, fulfil even the most audacious visions
of the universality of human values. However,
of globalisation, be they utopian or dystopian.
history teaches us that these values must be
And yet, just as there is a gap between per-
understood and implemented in the social,
sonal knowledge and personal data, there is
cultural, political, economic and not least,
also a gap between immediate or local human
technological contexts in which the crucial
experience and global or universally shared
link between personal data and personal ex-
experience. Some kinds of concrete local
perience is made. In other words, any digital
experience, set free from space and time by
ethics should also make us aware of the widely
the economy of global circulation, will wither
changing relationship between digital and
and perish. Other kinds will flourish. Human
human realities. Notwithstanding the great
culture does not adapt uniformly to globali-
variety in which different countries around the
sation.
globe respond to the challenges of digitisa-
tion, there are commonalities in how human
Understanding the human limits to globali-
beings experience the digital world and in
sation helps us to understand the limits of
data protection regulation. We know that not
all human experience lets itself be digitised
9EDPS Ethics Advisory Group | Report 2018
how they may become vulnerable in light of law and the question of where the law ends
their new technological condition. and where ethics begins.
While the work of the EAG is set in a European The second workshop, held on 18 May 2017,
context, the concerns are global and can be focused on the pragmatic challenges involved
observed beyond Europe (e.g. development in squaring the radically new means and
of social scoring in China, biometric identi- methods enabled by the digital revolution
fication in India, the weakening in the USA with the equally unique ethical issues gener-
of legal constraints on digital markets such ated by new digital technologies. To this end,
as privacy, net neutrality). The EDPS strat- the workshop was aimed at members of the
egy stipulates that the EU should lead the data science community and data engineers.
conversation on the ethical consequences
of the digital transformation. Digital Ethics Through these workshops, and subsequent
will therefore be the core topic of the 2018 discussions it became clear that the task of the
international conference of Data Protection EAG was not to define the rights and wrongs
and Privacy Commissioners hosted by the of navigating the digital ecosystem. It was
EDPS in Brussels. The report of the EAG intends rather about posing a broader and more pri-
to contribute to the reflection to launch this mordial set of questions about what it means
global debate. to do ethics in the digital age; about how to
construe the object of ethical analysis about
The EDPS Ethics Advisory Group work how to make explicit how the preconditions
process and aims of ethics have changed in the new
digital age, and about where ethics will need
Since it began its work in March 2016, the EAG
to adapt in the future.
has met 9 times and convened two workshops
aimed at collecting input and reactions from
Digital ethics can be understood from a
different communities.
number of perspectives.
The first workshop, held on 31 May 2016, was
A basic distinction is commonly drawn in
organised to interact with members of the
ethical reflection between normative (or pre-
data protection community. The workshop
scriptive) ethics and metaethics. Normative
helped the EAG to understand the percep-
ethics involves reflection leading to the formu-
tions and concerns in relation to the GDPR. The
lation of moral standards intended to regulate
discussions raised questions about the role of
conduct. Metaethics is concerned with discov-
ethics in the relation between law and techno-
ering and formulating the cultural, social, po-
logical innovation. It led the EAG to consider
litical and value-based conditions formulating
the unique boundaries between ethics and
rules of moral conduct. In its deliberations
the EAG took the consensus-based decision
to focus primarily on metaethical questions
10EDPS Ethics Advisory Group | Report 2018
of digital ethics. Its work thus consisted of 2. Socio-cultural shifts of the
considering more general and fundamen- digital age
tal questions about what it means to make
Below we highlight the seven ‘shifts’ that
claims about ethics and human conduct in
define the new landscape for digital ethics
the digital age, when the baseline conditions
to emerge, to map problems, questions and
of ‘human-ness’ are under the pressure of in-
concepts in each.
terconnectivity, algorithmic decision-making,
machine-learning, digital surveillance and the
From the individual to the digital
enormous collection of personal data, about
subject
what can and should be retained and what
can and should be adapted, from traditional Responding to a growing demand for person-
normative ethics. alised experiences, direct encounters between
persons in the digital world are increasingly
This led the EAG to confront a range of ques- replaced by remote algorithmic profiling. As a
tions: consequence psychological, spiritual, cultural,
social, moral and other qualities of persons
•• how to link new data technologies to tend to be more often detected through per-
European values; sonal data, directly mined, or triangulated
•• the meaning and consequences of through multiple sources, as well as by as-
human interactions with machines; serting personal identity through traditional
•• dignity in situations of declining au- means of self-affirmation, individual or col-
tonomy; lective identity claims, group recognition,
•• the market’s power to define what it conventional social network, or conventional
means to be human; political categories. Today identity is often
•• the dilemma of the multitude of established through digital constructs and
choices provided by a digital ecosys- patterns. Yet in the new digital age, we must
tem that is controlled by new forms remember that data exhausts neither personal
of automation; identity, nor the qualities of the communities
•• new challenges brought to tradition- to which individuals belong, that data pro-
al understandings of ownership and tection is not only about the protection of
property rights applied to personal data, but primarily about the protection of
data; and the persons behind the data.
•• responsible innovation in the digital
ecosystem. The persuasiveness of algorithmic processes,
which seek to optimise human interactions
in a growing number of sectors, nurtures
a perception that digitisation is only one
among many possible ways of representing
the world and its inhabitants and the digital
11EDPS Ethics Advisory Group | Report 2018
transcription of behaviours and propensities of the scope and limits of personhood, of its
is neither neutral nor exhaustive. The ques- non-digital values and non-digital customs.
tion is whether the digital representation
of persons may expose them to new forms From governance by institutions to
of vulnerability and harm. Data protection governmentality through data
is not a technical or legalistic matter. It is a
Traditional expectations of governance in
profoundly human one. The reflection of the
Western societies is based on an assumption
EAG and the present report have consistently
that distinct institutions hold the power to
drawn upon the wide-reaching premise of
govern and are held democratically account-
an ontological shift in governance from an
able for their application of power. The gov-
analogue logic to a digital one. Individuals,
erning and the governed are distinct, but
as well as public and private organisations,
nonetheless linked by mutually recognised
experience the world differently as a result
principles of legal obligation and account-
of the socio-cultural shifts of the digital age.
ability.
The traditional representations of identity
and the self, morality, social relations, cultural
Digital technologies have changed all this pro-
belonging and political action are undergoing
foundly. The use of algorithms and large data
a number of socio-cultural shifts due to digi-
sets can shape and direct the lives of individu-
tisation. As a consequence of these socio-cul-
als. Individuals may be increasingly governed
tural shifts, individuals, as well as public and
on the basis of the data generated from their
private sector organisations experience the
own behaviours and interactions. The distinc-
world differently.
tion between the forces that govern everyday
life and persons who are governed within it
From analogue to digital life
thus become more difficult to discern. In some
Human life may be understood by reference contexts, algorithmic profiling – carried out by
to the values that people hold and express means of behavioural economics for purposes
through their social, cultural and political ac- ranging from exploiting detected vulnerabili-
tivities. Today the experience of persons as ties in personalised marketing strategies to the
moral beings who think in moral terms, experi- influencing of human behaviours through en-
ence pleasure and pain in aesthetic and affec- vironmental, contextual, informational stimuli
tive terms, participate in social relations with – gradually transform how we may govern
other individuals whom they consider worthy ourselves. Behaviour may be governed by
of recognition and who express and confront ‘nudging’, that is by minute, barely noticeable
life in and through emotions, typically experi- suggestions, which can take a variety of forms
enced and expressed through digital means and which may modify the scope of choices
as an aggregate of digital facts detached from individuals have or believe they have. Because
the social, cultural, and historical conditions influences are minute and often unnoticed,
of life. As a consequence, digitisation puts while at the same time remaining within the
pressure on our traditional understandings bounds of democratic norms, nudging can be
12EDPS Ethics Advisory Group | Report 2018
used together with forms of artificial intelli- justice or fairness, putting in doubt the role of
gence and large quantities of data to promote solidarity in the face of uncertainty and chal-
particular interests or values. This shift repre- lenges the premise of the social contract that
sents a change in our premise about what it makes us a society. Shifts of this kind suggest
means to govern ourselves and be governed changes in the norms and methods available
by others, to marshal political power and to for describing, understanding and analysing
influence perceptions, choices and behaviours social relations, replacing the interpretation
of persons. of human intentions and conditions with the
likelihood of numeric correlation between
From a risk society to scored society inputs to human action and their outputs.
It has been common for institutions and or-
From human autonomy to the
ganisations to collect and aggregate informa-
convergence of humans and machines
tion in order to improve situational awareness
for decision-making about the future. In the An increasing number of technological ar-
so-called risk society, risk assessment is carried tefacts, from prostheses like eyeglasses and
out using techniques of probability calcula- hearing aids, to smartphones, GPS, augment-
tion, allowing individuals to be pooled and ed reality glasses and more, can be experi-
situations with the same level of risks to be enced in a symbiotic relationship with the
identified with each other for the purposes of human body. These artefacts are experienced
understanding the value of loss and the cost less as objects of the environment than as
of compensation. In the digital age, algorithms a means through which the environment is
supported by big data can provide a far more experienced and acted upon. As such, they
detailed and granular understanding of indi- may tend toward a seamless framing of our
vidual behaviours and propensities, allowing perception of reality. They may shape our
for more individualised risk assessments and experience of the world in ways that can be
the apportioning of actual costs to each in- difficult to assess critically. This phenomenon
dividual; such assessment of risk threatens of incorporation or even embodiment of tech-
contractual or general principles and widely nologies is even more intense whenever the
shared ideas of solidarity. devices are implanted in the body.
In this scored society, individuals can be hy- A parallel frontier of convergence between
per-indexed and hyper-quantified. Beliefs human and machines is on the verge of being
and judgments about them can be made crossed by intelligent, or rather ‘autonomous’,
through opaque credit or social scoring al- machines that are able to adapt their behav-
gorithms that must be open to negotiation iours and rather than merely executing human
or contestation. The tendency to replace ag- commands, collaborate with, or even replace
gregations of potential costs in terms of loss, human agents to help them identify problems
damages or harms with ‘real’, ‘individualised’
costs, challenges conventional theories of
13EDPS Ethics Advisory Group | Report 2018
to be solved, or to identify the optimal paths the governance of crime around the science
to finding solutions to given problems. of possible transgression and possible guilt,
removing moral character from the equation.
From individual responsibility to The aim of criminal justice remains the same:
distributed responsibility to provide security within society while at
the same time adhering to high standards of
We are becoming familiar to problems of many
human rights and the rule of law. However, the
hands and problems of collective action and
shift that marks one of the main backdrops
collective inaction, which can lead to trage-
of the digital age and calls for a new digital
dies of the commons and problematic moral
ethics is that of trying to predict criminal be-
assessments of complex human endeavours,
haviour in advance, using the output of big
both low and high tech, where a number of
data-driven analysis and smart algorithms to
people act jointly via distant causal chains,
look into the future.
while being separated in time and space from
each other and from the aggregated outcomes
The shift is twofold. First, the object of legal
of their individual agency. The problems of
regulation can become less interesting, as a
allocation and attribution of responsibilities
phenomenon in the here-and-now and more
are exacerbated by the networked configura-
an object for reasoned speculation about its
tion of the digitised world. It seems that our
future role, all based on the predictive powers
conception of responsibility and control are
of the big data and algorithmic processing.
hard to reconfigure in increasingly complex
Second, while the analysis of legal issues is
eco-systems of big data and advanced digital
being pushed into the future, what is un-
technology. Algorithmic transparency and
derstood as existing in the future becomes
accountability are among the most vividly
drawn into the assessments of the present.
debated themes of our time, yet, rendering
Estimates of what the future will hold, gen-
algorithms more transparent and accountable
erated through the patterns gathered in big
can never decrease or alleviate the responsi-
data analysis, are continuously gaining in im-
bility of human agents.
portance for the way criminal justice operates
today and is purported to operate tomorrow.
From criminal justice to pre-emptive
justice
In legal practice, the detection and investi-
3. Ethical reflection for the
gation of crime is no longer only a science of
digital age
criminal acts, of identifying and adjudicating
events authored by identifiable, accountable As a result of these shifts, it becomes clear that
individual actors under precise conditions and the key concepts that have supported our un-
in terms of moral and legal responsibility, but derstanding of our lives, society and social and
also a statistically supported calculation of political order, no longer adequately relate to
the likelihood of future crime, a structuring of a world dramatically changed by the rise of
14EDPS Ethics Advisory Group | Report 2018
digital technologies. An early warning of this to adapt ethical principles to rapidly evolving
misfit is the increasing number of traditional issues, which often outpace the evolution of
concepts that have had to be amended in law. It is in this way that the EAG has under-
order to mark their external transformation stood the EDPS strategic call to assess ‘the
and extended scope, changing their seman- ethical dimension beyond data protection
tics in yet unexplored ways. ‘Privacy’ becomes rules’. The EAG undertakes this work with a
‘digital privacy’, ‘trust’ becomes ‘trust online’, sense of urgency, based on the recognition
‘friendship’ is ‘Facebook friendship’, a ‘com- that common sense and traditional notions of
munity’ is a ‘cyber-community’, ‘intelligence’ individual responsibility and ethics have come
becomes ‘artificial’, ‘democracy’ becomes under pressure and risk becoming irrelevant.
‘tele-democracy’, ‘reality’ becomes ‘virtual’, and
so forth. These new terms indicate a novelty. Digital ethics does not refer to a radically new
The impact of these new concepts and the idea. From the moment the first computa-
phenomena they describe places European tional devices and the first digital computers
data governance in uncharted territory. became available in the 1960’s, ethical ques-
tions were raised, and a number of different
The new digital age generates new ethical approaches contributed to what can be called
questions about what it means to be human in hindsight digital ethics: social informatics,
in relation to data, about human knowledge computer ethics, information ethics, Science
and about the nature of human experience. It and Technology Studies (STS), technology as-
obliges us to re-examine how we live and work sessment, value sensitive design, democratic
and how we socialise and participate in com- design, professional ethics for the IT field (IEEE,
munities. It touches our relations with others ACM, IFIP).
and perhaps most importantly, with ourselves.
If we accept the idea of a new digital reality, The purpose of digital ethics is not only to
we also accept that it brings with it changing account for the present, but also to perform a
conditions of being human. It invites a new foresight function. Such a function has many
ethical evaluation, a new interpretation of layers. Two of them are taken into consider-
some of the fundamental notions in ethics, ation in this report. One is an anticipatory
such as dignity, freedom, autonomy, solidar- function, preparing technology users and
ity, equality, justice, and trust; and invites us policy-makers and providers for potential
to test the conditions of their validity for the concerns lying on the horizon and requiring
new realities that present themselves in this technologies to hold tools and concepts able
new age. to confront our evolving digital reality. The
other is to develop means for empowering
In its deliberations, the EAG has regarded this individuals and groups to confront anxieties
kind of ethical reflection as a means to fill crit- linked to both the potential weakening of
ical gaps in existing legal regulations and as
a way of supporting those actors who work
15EDPS Ethics Advisory Group | Report 2018
fundamental rights and to technological un- values of dignity, autonomy, freedom, soli-
certainty itself. darity, equality, democracy and trust.
Technological change has a significant soci- Dignity
etal impact that is nonetheless experienced
The notion of human dignity in the Europe-
across a range of individual experiences. In the
an intellectual tradition has its origins in the
consensus view of the EAG digital ethics will
Kantian idea that human beings are to be un-
provide new terms for identifying, analysing
derstood as ends in themselves and never as a
and communicating new human realities, in
means alone. Since the end of World War II in
order to displace traditional value-based ques-
particular, this concept has had a key impact
tions and identify new challenges in view of
on International Human Rights Law, in legal
values at stake and existing and foreseeable
scholarship and in jurisprudence. It has also
technological changes.
been acknowledged as a foundational value
in most human rights instruments. The Uni-
versal Declaration of Human Rights of 1948
4. From foundational values recognises that the inherent dignity and the
to digital ethics equal and inalienable rights of all members
of the human family are the foundation of
A re-assertion of the fundamental values at
freedom, justice and peace in the world. It
the heart of European data protection and
appears in every iteration of the Treaty of
other fundamental rights and liberties is
European Union (or Community) beginning
needed in order to make way for a reflection
from the Treaty of Rome (1957) together with
and debate on the implications of the new
freedom, democracy, equality, rule of law, and
digital technologies in relation to Fundamen-
respect for human rights, as one of the core
tal and Human Rights and the basic princi-
values of the European project. The Charter
ples at the heart of the European project. As
of Fundamental Rights of the European Union
we enter the coming era, new concepts of
explicitly acknowledges the foundational role
data protection will be called for. New kinds
of the value of human dignity.
of digital opportunities, risks, benefits and
harms will need to be conceptualised and
Revisiting the concept of dignity will, for
addressed. In the new big data ecosystem,
example, provide a foundation for the ethical
unprecedented commodification of data gath-
assessment of a range of next generation algo-
ered from persons, behaviours and environ-
rithmic profiling techniques which are increas-
ments can be expected. This new ecosystem
ingly deployed in most sectors of activities
will directly challenge traditional European
and government. The aim of these techniques
is the anticipation and where necessary or
useful, the influencing of future paths, be-
haviours, preferences and performances of
individuals. In the age of big data, this corre-
16EDPS Ethics Advisory Group | Report 2018
sponds to the intensification of algorithmic freedom and its value, independently of their
profiling and ‘personalisation’. When individ- digital experience.
uals are treated not as persons but as mere
temporary aggregates of data processed at Thus, the World Summit on the Information
an industrial scale so as to optimise through Society, convened under the auspices of the
algorithmic profiling, administrative, financial, United Nations in 2003, declared that access
educational, judicial, commercial and other to the internet is henceforth to be considered
interactions with them, they are arguably, not a requirement in order to exercise and enjoy
fully respected, neither in their dignity nor in one’s rights to freedom of expression and
their humanity. opinion, stipulated in Article 19 of the Univer-
sal Declaration of Human Rights. At the same
Freedom time, freedom to navigate the web is enabled
by decisions about technological functions.
Like dignity, freedom is one of the founda-
These functions are part of the background
tional values of the European Union and a
assumptions of most users. These technologi-
pillar of the common provisions of the Treaty
cal settings function like political assumptions
of European Union. Since 1999, it has, in addi-
about freedom in the internet. They are the
tion, been the core feature of the Schengen
tacit governing premise for online life, silently
political program of offering all EU citizens
and invisibly allocating band-width, routing
an ‘area of freedom, security and justice’. In
data and regulating speed. The suppression
its core European ethical and judicial formu-
of ‘net-neutrality’ by the U.S. Federal Commu-
lations, freedom is understood as a determin-
nications Commission will disrupt a range of
ing, positive right. It determines in the sense
premises of digital use that up until now have
that it is not regarded as unconditional, but
been taken for granted.
rather made meaningful by its insertion into
the European system of values, underpinning
Autonomy
a specific system of laws, directives, commu-
nication and international obligations. The concept of individual autonomy is also
deeply rooted in the Kantian concept of the
The digital age reposes the question of what human person and its dignity. It is an individ-
freedom means, how and to what extent our ual capability and a collective potential, the
common and individual sense of freedom is implementation of which is always a matter of
shaped and nourished by information and degree. Threats to autonomy in the digital age
how new configurations of data and data can be observed as circumstances or modes of
flows contribute to the production of new government that prevent people from devel-
kinds of freedom. Freedom will need to be oping and/or effectively implementing their
increasingly considered as a product of the potential for autonomy. Such threats include
digital age. In some cases, citizens will find the potential substitution of computational or
it increasingly difficult to understand their algorithmic optimisation for human delibera-
tion and decision-making over time, eroding
17EDPS Ethics Advisory Group | Report 2018
rather than sustaining human potential for and the use of medical data in the context of
autonomy. They include the algorithmic or employment or in breaches of context-specific
human spreading of fake news that weakens rules of confidentiality.
the capacity of individuals to discriminate
between what is reliable information and Equality
what is not. Similarly, democratic processes
Like solidarity, equality is a concept with a
risk being weakened through new practices of
strong political tradition in Europe and fea-
political marketing relying on micro-targeting
tures heavily in the Charter of Fundamental
and algorithmic psychographic profiling. This
Rights (Title III) in reference to equality before
includes automated decisions taken by digital
the law, non-discrimination, diversity, gender
systems on the basis of continuous observa-
equality, the rights of children, the elderly and
tion of the choices, behaviour and emotions
the disabled.
of individuals, without the possibility for them
to understand and communicate their own
In the digital age, novel forms of algorithmic
motivations, intentions, reasons, and expla-
discrimination pose a risk to equality of op-
nations or to take autonomous decisions.
portunity and to the fundamental right to
be protected against digital networks that
Solidarity
offer a wealth of often free and accessible
Solidarity refers to a relation to others, the information.
unity of community values, aims, interests, ob-
jectives or standards, past, present and future. Unlike traditional economic goods, which
In its most elementary form, solidarity corre- obey a law of scarcity, information is multi-
sponds to something shared, something that purpose. The use of digital information for
holds a group together in an environment. one purpose does not deplete its availability
Solidarity has played a key role in the geopo- for another. This opens up, on the one hand,
litical discourse of European construction from a wide array of opportunities for creating and
its very origin. It is a core concept of Title IV stabilising an economy of sharing based on
of the Charter of Fundamental Rights, which equality and fairness in a digital society. Yet,
contains guiding provisions about societal on the other hand, the equality of opportunity
security, health care, access to economic ser- that is facilitated by the consumption of infor-
vices and consumer protection, to name a few. mational goods by multiple consumers risks
creating new inequalities resulting from the
Threats to solidarity and empowerment in the fact that some people may have the advan-
digital age are a consequence of the shift to a
scored society as outlined in chapter two. They
take the form of hyper-individualisation and
for a focus on ‘real’ costs through, for example,
behavioural profiling in the context of insur-
ance, the interconnectedness of databases
18EDPS Ethics Advisory Group | Report 2018
tage by learning about content before others data aggregates exploitable on an industrial
do and may extract value from it. scale rather than subjects in their own right.
Democracy Interactions based on algorithmic profiling
may exacerbate information imbalances
Most of the core debates about the overall
between decision-making governments and
viability of the European Union, its institutions,
companies on the one hand and individuals
the inclusion and in some cases the exclusion,
on the other hand. As a result, ‘data-rich’ public
of Member States, have revolved around the
and private organisations will have greater
question of the democratic legitimacy of the
ethical responsibilities towards citizens and
European project.
customers. Digital ethics must identify new
perspectives, potential and boundaries for
In the digital age, both the deliberative model
dealing with data ethically, by formulating
of democracy, grounded on citizenship and
the terms of a proactive approach to ethics,
the notion of the common good are chal-
beyond mere legal avoidance measures. As
lenged as a basis for the European social con-
such it will set out the terms of a social inno-
tract. Algorithmically processed big data play
vation that parallels the rapid technological
an increasingly dominant role in informing
innovation we are experiencing on a daily
and guiding individual and social action, in vir-
basis.
tually all sectors of business and government.
Data-driven governance is often presented as
Justice
a ‘revolutionary’ mode of governance eman-
cipated from the yokes of what is assumed to Like the concept of freedom, justice appears
be biased human representation, ambiguous prominently as a core value in the Europe-
human language, or subjective points-of-view. an project. It features as a core principle of
the Schengen area of freedom, security and
Personal or anonymous data are the new co- justice. It also features in the Title IV provi-
ordinates of social modelling. Big data rather sions on justice and rule of law, the primary
than institutional or deliberative processes recourse to the guarantee of basic rights and
threaten to become the basis on which indi- freedoms proclaimed by European Union law,
viduals are classified, evaluated, rewarded or including the right to fair trial, presumption
punished. These same categories are used to of innocence, legality and proportionality of
evaluate the merits and needs of individuals punishment and against double-jeopardy.
or the opportunities or dangers underlying
the lives they lead. In this view of ‘data-driven The guarantee of justice in any institution
governance’, the question arises whether the is dependent upon a complex and interwo-
individual human person as a legal subject ven systems of information management.
has a future and how one can ensure that in- Political rights are often deeply intertwined
dividuals are not viewed only as temporary with the free flow of impartial information,
transparency and accountability. Criminal
19EDPS Ethics Advisory Group | Report 2018
justice depends critically on information col- Strategy (2013) or the much-heralded A Digital
lected and disseminated about the political Single Market for Europe (2015).
context. Criminal investigations are linked
to the processing of forensic data and ques- Crucially, trust has a double-meaning in data
tions of appropriateness and admissibility of protection. One is a technologically-oriented,
data. In criminal justice systems, data-driven functional or knowledge concept: trust in a
algorithmic solutions play a privileged role technology refers to the confidence that it
in the tendency towards performance-ori- will not fail in its pure functionality, that its
ented management of justice systems. This design and engineered properties will carry
tendency toward technical management of out their expected function. The second, trust
judicial systems impacts the ecosystem of is a moral concept referring to belief and re-
justice in terms of the presumption of inno- liance in a person or organisation that they
cence, rules of evidence, processes of justifi- will honour explicit or implicit promises and
cation and the ability to contest judicial deci- commitments.
sions, non-discrimination, and equal access to
justice. The new horizon of predictive litigation Human society has arguably taken the course
may render law firms more selective in the it has, because cultural, social, institutional
cases and the individuals they are willing to and technical solutions have been found to
represent, encouraging advocates to assess create arrangements that can establish and
the value of sources of evidence by algorithm reinforce trust: promises, contracts, witnesses,
instead of by human judgment. institutions, ethical norms, laws and associat-
ed compliance arrangements. Where trust is
Trust absent, social cooperation is weakened and
costly informational transactions, governance
The development of human societies has also
structures and enforcement mechanisms need
taken the form of institutionalising trust. As a
to be deployed, decreasing efficiency and in-
concept, trust is related to the notions of risk
creasing costs. Low-trust societies struggle to
and uncertainty. Trust has grown in impor-
exit this suboptimal equilibrium.
tance in the evolution of information technol-
ogies as a bridge between technical and moral
Data protection faces three interrelated crises
aspects of technically assisted communication
of trust:
systems. It does however appear prominently
wherever the European Commission seeks to
i) individual trust: trust in people,
advance technological innovation against
institutions and organisations that
the apparent or proven resistance of public
deal with personal data is low;
trust, such as in the Digital Agenda for Europe
ii) institutional trust: transparency and
(2010), the Framework for Building Trust in
accountability as a condition for
the Digital Single Market (2011), the Cloud
keeping track of the reputations of
Computing Strategy (2012), the Cybersecurity
individuals and organisations and
20EDPS Ethics Advisory Group | Report 2018
trust-building in a society requires feel equal notwithstanding their individual
access to personal data; and differences and experience trust?
iii) social trust: trust in other members
of social groups used to be an- Protecting fundamental values is not the same
chored in personal proximity and as privileging an individualistic concept of
physical interaction, which are fundamental rights. A digital ethics must be
being increasingly replaced by precise and rigorous in its regard for the rela-
digital connections. tion between ethics and innovation.
A range of technological fixes to this triple-cri-
sis have appeared on the horizon, though Among the issues raised by digital ethics, the
the outcome of their implementation seems EAG has focused on the following conditions
unclear: distributed ledger technologies (e.g. that it considers necessary for an ethically
blockchain) and peer-to-peer technologies sustainable development of digital technol-
and possibly quantum cryptography could ogies in relation to the fundamental values
help to solve some of the problems with of dignity, freedom, autonomy, solidarity,
eroding trust in digital societies. However, equality, democracy, justice and trust:
blockchains and their functional equivalents
give rise to a number of other problems that •• material conditions e.g. fair distribu-
need to be identified and addressed in due tion of infrastructure, supplies, affor-
course. In ethical terms, this costly crisis of dances, environment, social welfare,
trust can be addressed by revisiting the terms health and economics;
and qualities of digital communities. •• cultural conditions e.g. access to edu-
cation, tradition, art, language, world
Trust builds on shared assumptions about views;
material and immaterial values, about what •• personal conditions e.g. the freedom
is important and what is expendable. It stems to develop and express one’s identity
from shared social practice, shared habits, without interference, the possibility
ways of life, common norms, convictions and to revise one’s own preferences and
attitudes. Trust is based on shared experiences, choices, the possibility to control the
on a shared past, shared traditions and shared image of oneself and one projects;
memories. •• political and social-structural con-
ditions e.g. equal opportunities and
What are the necessary conditions for non-discrimination, social rights, par-
implementing foundational values? ticipation, transparency, accountabil-
ity;
In light of these values, what are the necessary
•• legal conditions e.g. due process, ef-
conditions for people today and in future to
fective prohibition, prevention and
be respected in their dignity, to develop their
autonomy, to be able to count on solidarity,
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