Even if the term “digital native” have been debated for years by several esteemed scholars, this article aims to seek the digital natives’ attitude towards data protection and safety. It is fundamental, in a society which is evolving so fast, not to focus solely on the present, but to endeavour to improve the future by paying the utmost attention to the new generations. What balance of interests must we achieve between privacy vs transparency, secrecy vs security, reputation vs freedom of expression in a world of internet which is increasingly regulated by Moore’s Law, rather than by state legislation? The purpose is to analyze the current tension between privacy and other fundamental rights from a predominantly legal standpoint, pointing out that the solutions adopted by legislation and case law are not sufficient and that maybe it is also necessary to reconsider this value from an ethical viewpoint.

1. © by Tech and Law Center – www.techandlaw.net 1
Privacy of the Digital Natives
Francesca Bosco1
and Giuseppe Vaciago2
May, 2012
Abstract
Even if the term “digital native” have been debated for years by several esteemed scholars, this ar-
ticle aims to seek the digital natives’ attitude towards data protection and safety. It is fundamental,
in a society which is evolving so fast, not to focus solely on the present, but to endeavour to improve
the future by paying the utmost attention to the new generations. What balance of interests must we
achieve between privacy vs transparency, secrecy vs security, reputation vs freedom of expression
in a world of Internet which is increasingly regulated by Moore’s Law, rather than by State legisla-
tion? The purpose is to analyze the current tension between privacy and other fundamental rights
from a predominantly legal standpoint, pointing out that the solutions adopted by legislation and
case law are not sufficient and that maybe it is also necessary to reconsider this value from an ethi-
cal viewpoint.
Table of Content
1. Digital natives’ and Digital Immigrant........................................................................................ 2
2. Privacy in the third millennium................................................................................................... 4
3. Regulating global privacy ........................................................................................................... 5
4. Conclusions.................................................................................................................................. 7
1
Francesca Bosco obtained her law degree from Università degli Studi di Torino, with a focus on International Law and was a practicing attorney for two
years before joining UNICRI in 2006 as a member of the Emerging Crimes Unit. Her role in this organization is to be responsible for the cybercrime preven-
tion projects, and in conjunction with key strategic partners, has developed new methodologies and strategies for researching and countering computer re-
lated crimes. She began collaborating information on different cybercrime-related projects such as the Hackers Profiling Project (HPP), SCADA (Supervisory
Control and Data Acquisition) Security and a multi-level training program for ICT and security professionals, lawyers, and law enforcement agencies. Ms.
Bosco also participated as a speaker in various conferences and training seminars on the topic of child online pornography and contributed to the develop-
ment ITU Child Online Protection (COP) guidelines.More recently Ms. Bosco is researching and developing technical assistance and capacity building pro-
grams to counter the involvement of organized crime in cybercrime and a methodology with which to ascertain the social and financial ramifications of cy-
bercrime and online abuse.She is member of the TLC Executive Committee.
2
Giuseppe Vaciago has been a lawyer and a member of the Milan Bar since 2002 and for the last 10 years his primary focus has been IT Law with a focus
on cyber crime. He has assisted many national and international IT companies. Academically, he received his PHD on Digital Forensics from Università di
Milano and he is a lecturer at Insubria University (Varese and Como) where he holds a course on IT law. He recently attended Fordham Law School and
Stanford Law School as a ‘Visiting Scholar’ to expand his studies in his own particular research area. Giuseppe Vaciago is the author of many publications on
cybercrime, including both scientific journals and textbooks, which have been adopted by the University where he teaches. He has also delivered many lec-
tures and presentations in both Italy and abroad.He is member of the TLC Executive Committee.

2. © by Tech and Law Center – www.techandlaw.net 2
1. Digital natives’ and Digital
Immigrant
The terms “digital native” and “digital immi-
grant” were coined in 2001 by Marc Prensky3
,
but they are slowly becoming ubiquitous
amongst scholars and activists working in the
youth-technology sector, especially in emerg-
ing Information Societies. “Digital native” is
generally used to differentiate the generation
that was born after 1980 – who has an un-
precedented (and often inexplicable) relation-
ship with information technology4
. The distinc-
tion between digital natives and digital immi-
grants is controversial, not least because the
digital universe currently inhabited by digital
natives was in fact conceived and created by
digital immigrants.
Generational differences are seen as the
cause of wide shifts in our ability to engage
with technologies and the concept of the digi-
tal native has gained popularity in certain are-
as of policy and practice. But generation is
only one of the predictors of advanced inter-
action with the Internet. Breadth of use, expe-
rience, gender and educational levels are also
important, indeed in some cases more im-
portant than generational differences, in ex-
plaining the extent to which people can be de-
fined as a digital native. Helsper and Eynon’s
study suggests that it is possible for adults to
become digital natives, especially in the area
of learning, by acquiring skills and experience
in interacting with information and communi-
cation technologies5
.
Ten years after Prensky’s definition, White
and Le Cornu proposed the terms ‘Visitors’
and ‘Residents’6
as a replacement for Pren-
3
Prensky Marc, Digital Natives, Digital Immigrants, From On the Hori-
zon, MCB University Press, Vol. 9 No. 5, 2001 available at:
http://www.marcprensky.com/writing/Prensky%20-
%20Digital%20Natives,%20Digital%20Immigrants%20-%20Part1.pdf.
4
There are many critical voices caution against presuming that all those
born after the advent of the Internet are Digital Natives. Shah, Nishant
and Abraham, Sunil, Digital Natives With A Cause?, Centre for Internet
and Society, 2009, available at: http://cis-india.org/digital-
natives/blog/uploads/dnrep1); Bennett, Sue, Maton, Karl and Kervin,
Lisa, The “Digital Natives” Report: A Critical Review of the Evidence’,
British Journal of Educational Technology, 2008, available at
http://kimhuett.wiki.westga.edu/file/view/The-digital-natives-debate-A-
critical-review-of-the-evidence.pdf).
5
Helsper, Ellen Johanna and Eynon, Rebecca, Digital natives: where is
the evidence?, British Educational Research Journal, 2010, Vol. 36, 503.
6
White, S. David and Le Cornu, Alison, ‘Visitors and Residents: A New
Typology for Online Engagement’, First Monday, Vol 16 No 9, 2011,
available at:
http://firstmonday.org/htbin/cgiwrap/bin/ojs/index.php/fm/article/view/317
1/3049.
sky’s much‐criticised digital natives and digital
immigrants. The new approach wanted to rep-
resent people behaving in different ways
when using technology, depending on their
motivation and context, without categorising
them according to age or background. The
proposed typology should be understood as a
continuum and not a binary opposition. Indi-
viduals may be able to place themselves at a
particular point along this continuum rather
than in one of two boxes. Zur said that
“By age 20, kids will have spent 20,000
hours online –the same amount of time a
professional piano player would have spent
practicing”7
.
According to Born Digital8
,
“Many Digital Natives incorrectly perceive
that their conversations online are far more
private than they are. In other words, there
is a new incentive to post information about
yourself online (social norms suggest that
more information about yourself will attract
more friends), but less of a check on your
behaviour (an innate sense of privacy, or
someone telling you “don’t you dare go out
dressed like that”). The result is that at no
time in human history has information
about a young person been more freely
and publicly accessible to so many others”.
Our privacy is becoming “liquid”: we publish
and use, in a networked environment, ex-
tremely valuable data, of which we quickly
lose availability. These data after some time
can become harmful. While personal identity
offline is characterized by a unitary base that
makes it immune to selective cuts, the digital
identity is by definition exposed to the inevita-
ble fragmentation and contingency of traces,
paths and preferences that characterize surf-
ing on the web: within the multiplicity and
fragmentation, the common denominator of
our own digital life is the crucial position occu-
pied by the user’s personal and sensitive da-
ta.
Another issue that comes to mind when dis-
cussing youth and media is the issue of online
7
Zur, Ofer and Zur, Azzia Psychology of the Web & Internet Addiction,
Zur Institute, 2011, available at
http://www.zurinstitute.com/Internetaddiction.html.
8
Gasser, Urs, Palfrey, John, Born Digital - Understanding the First Gen-
eration of Digital Natives, Perseus Publishing, 2008.

3. © by Tech and Law Center – www.techandlaw.net 3
safety9
. The public spaces in which young
people interact have expanded. Much of the
social life of young people takes place in a
converged space that links the online and the
offline. These new public spaces are often
held in private hands, by corporations like Fa-
cebook, Google, MySpace, and many others.
In the process of dismantling the boundaries
between the public and the private10
, often
youngsters put themselves in grave danger,
not only in their immediate present but also in
their unsuspecting futures. Youth tend to fo-
cus more on the potential benefits of infor-
mation disclosure than they do on potential
harms11
. Despite having knowledge and in-
formation, digital natives tend to forget their
online safety and privacy rights – a phenome-
non that Mayer- Schoenberger calls ‘the art of
forgetting in the age of ubiquitous compu-
ting’12
.
It is ascertained that young people share too
much information about themselves online.
The Internet’s capacity to archive identities in
a way that permanently records everything
ever expressed online often leads to embar-
rassing stories and personal information being
laid bare to public scrutiny. As Palfrey, Gasser
and Boyd stated, “we fret over an erosion of
the reasonable expectation of privacy in the
online environment”13
.
The general public welcomes even ordinary
changes in the privacy policy and terms of
service at large social network sites such as
Facebook. But then real behaviour is different.
Gross and Acquisti further examined how in-
dividuals disclose information and protect pri-
vacy on Facebook, finding that most users
share personal information openly and few
9
Gasser, Urs, Maclay, Colin M. and Palfrey, John G., Working Towards
a Deeper Understanding of Digital Safety for Children and Young People
in Developing Nations (June 21, 2010). Berkman Center Research
Publication No. 2010-7; Harvard Public Law Working Paper No. 10-36.
Available at http://ssrn.com/abstract=1628276.
10
Boyd, Dana Michele, Taken Out of Context: American Teen Sociality
in Networked Publics. Doctoral Dissertation, University of California,
Berkeley, Available at:
http://www.danah.org/papers/TakenOutOfContext.pdf.
11
Santo, R., James, C., Davis, K., Lee Katz, S., Burch, L., & Joseph, B.,
Meeting of Minds: CrossGenerational Dialogue on the Ethics of Digital
Life. A report in collaboration of Global Kids, Common Sense Media &
GoodPlay Project at Harvard University, 2009.
12
Mayer-Schoenberger, Viktor, Delete: The Virtue of Forgetting in the
Digital Age, Princeton University Press, 2009.
13
Palfrey, John G., Gasser, Urs and Boyd, Danah, Response to FCC
Notice of Inquiry 09-94: Empowering Parents and Protecting Children in
an Evolving Media Landscape, Berkman Center Research Publication
No. 2010-02; Harvard Public Law Working Paper No. 10-19. Available
at: http://ssrn.com/abstract=1559208.
modify their default privacy settings for in-
creased protection14
.
Many young people do care about privacy
and their personal reputations15
. But often,
they lack sufficient skills and tools to keep pri-
vate from others data they wish to protect.
From the Eurobarometer16
, it is possible to
evince that around 94% of those aged 15-24
use Internet (EU 66%). 84% of them use so-
cial networking sites (EU 52%) and 73% of
them use websites to share pictures, videos,
movies (EU 44%). They are the most likely to
agree that disclosing personal information is
not a big issue for them (43%, EU 33%), that
they do not mind disclosing personal infor-
mation in return for free services online such
as a free email address (48%, EU 29%), and
that they feel obliged to disclose personal in-
formation on the Internet (41%, EU 28%).
They are also most likely to disclose various
types of personal information on social net-
working sites, and to disclose personal infor-
mation on social networking sites ‘for fun’
(26%, EU 22%); they usually do not read pri-
vacy statements on the Internet (31%, EU
25%), but they feel sufficiently informed about
the conditions for data collection and the fur-
ther uses of their data when joining a social
networking site or registering for a service
online (64%, EU 54%); they are likely to have
changed their personal profile from the default
settings on a social networking site or sharing
site (62%, EU 51%); and they tend to hold the
social networking or sharing sites responsible
for the safe handling of data. They are also
more likely to feel that they have control over
the information disclosed on social networking
or sharing sites (84%, EU 78%) and over the
information on online shopping websites
(80%, EU 68%).
Equally, the care-free digitals are the least
likely to mention the risk that their information
14
Gross, Ralph and Acquisti, Alessandro, Information Revelation and
Privacy in Online Social Networks (The Facebook Case)’, in Proceed-
ings of ACM Workshop on Privacy in the Electronic Society, 2005, avail-
able at: http://www.heinz.cmu.edu/~acquisti/papers/privacy-facebook-
gross-acquisti.pdf.
15
Youn, Seounmi, Determinants of Online Privacy Concern and Its Influ-
ence on Privacy Protection Behaviors Among Young Adolescents, The
Journal of Consumer Affairs, 2009, available at:
http://onlinelibrary.wiley.com/doi/10.1111/j.1745-6606.2009.01146.x/full.
16
Data taken from Special Eurobarometer 359, Attitudes on Data Pro-
tection and Electronic Identity in the European Union, European Com-
mission, 2011, available at:
http://ec.europa.eu/public_opinion/archives/ebs/ebs_359_en.pdf.

4. © by Tech and Law Center – www.techandlaw.net 4
may be used to send them unwanted com-
mercial offers (24%, EU 28%); to say that the
websites will not honour the privacy state-
ments (20%, EU 24%); to protect their identi-
ty, either in daily life or on the Internet; or to
be concerned that the information about them
held by companies may be used for a differ-
ent purpose from that for which it was collect-
ed (63%, EU 70%).
2. Privacy in the third millennium
The above-mentioned European Commission
report reveals that digital natives care little
about the possible consequences of posting
their own or others' data on Internet; neither
do they care where such data is really stored.
The exponential growth in cloud computing
systems is a clear demonstration of the fact
that saving money and ease-of-use are more
important than the choice to ensure greater
control of one's own personal data.
Amongst the possible reasons for this lack of
sensitivity and respect for privacy, two stand
out: the first is the speed with which Internet
has developed. Managing such a rapid pro-
cess involving the transformation of Internet
has made it impossible to put in place a sys-
tem of technical and legal rules capable of
properly protecting users' privacy17
. The se-
cond reason is the fact that Internet, possibly
due to the very speed with which it has devel-
oped, is a technology which is run almost ex-
clusively by the private sector. National gov-
ernments began showing interest in Internet
too late. Vint Cerf remarks that18
:
“The Internet has introduced an enor-
mously accessible and egalitarian platform
for creating, sharing and obtaining infor-
mation on a global scale. As a result, we
have new ways to allow people to exercise
their human and civil rights. In this context,
engineers have not only a tremendous ob-
ligation to empower users, but also an ob-
ligation to ensure the safety of users
online”.
17
Only after 2009 was the concept of Privacy by Design introduced.
Cavoukian, Ann, Privacy by Design, The 7 Foundational Principles,
Available at
http://www.ipc.on.ca/images/resources/7foundationalprinciples.pdf.
18
Cerf, Vint, Internet Access Is Not a Human Right, New York Times,
January 4 2012,
http://www.nytimes.com/2012/01/05/opinion/Internet-access-is-not-a-
human-right.html.
In addition to the great importance that Cerf
correctly attributes to engineers, the fact that
the IT world is now in the hands of a limited
number of companies is just as significant; the
majority of these companies are headquar-
tered in Silicon Valley. As we will see in the
next paragraph, the concentration of so many
companies within such a limited geographical
area, also explains why it is difficult for the
public sector, including the courts, even at an
international level, to understand and thus to
"regulate" the Internet.
In this context, the future of privacy will cer-
tainly depend on the role given to two values
which are of key importance for every demo-
cratic system, but which may potentially clash
with the right to privacy: individuals' freedom
of expression and safety.
Before the advent of Internet, the freedom of
expression, though recognised virtually as an
inalienable right of every person, was highly
restrained and consequently filtered by the
existing media. The press, television and ra-
dio are tools which only allow communication
for those who control them19
. As Italians, we
all know just how strategic it is to have this
type of control20
.
Internet has made it possible for anybody to
open a blog or a profile on a social network
without any territorial or economic restrictions;
the consequences can sometimes be harmful
for the quality of such information21
; however,
there is no doubt that freedom of expression
is absolutely defended. Rosen notes:
“The sociologist Thomas Mathiesen has
contrasted Michel Foucault’s Panopticon –
a surveillance house in which the few
watched the many – with what he called
the “Synopticon” created by modern televi-
sion, in which the many watch the few. But
in the age of the Internet, we are experi-
encing something that might be called the
“Omnipticon” in which the many are watch-
19
Rosen, Jeffrey, The Naked Crowd Reclaiming Security and Freedom
in an Anxious Age, Florida State Law University, 2004, available at
http://www.law.fsu.edu/faculty/2003-2004workshops/rosen.pdf
20
European Court of Human Right, Application no. 38433/09 - Centro
Europa 7 S.R.L. v. Italy, Written Comments of the Open Society Justice
Initiative, available at:
http://www.soros.org/initiatives/justice/litigation/europa7/written-
comments-20100311.pdf.
21
Morozov, Eugeny, The Net Delusion. The Dark Side of Internet Free-
dom, Public Affairs, New York, 2011, p. 253.

5. © by Tech and Law Center – www.techandlaw.net 5
ing the many, even though no one knows
precisely who is watching or being watched
at any given time”.
In addition, it should be borne in mind that un-
like television, Internet "does not forget". For
this reason there is now the need to provide
for the right to be forgotten. Using convincing
arguments in his book “Delete,” Schönberger
proposes to re-establish the ordinary balance
between memory and forgetfulness: in which
the former is once more the exception and the
latter the rule22
. Eric Schmidt (CEO of Google
Inc.) objects to this approach, commenting “if
you have something that you don't want any-
one to know, maybe you shouldn't be doing it
in the first place” 23
.
Beyond the conflict between freedom of ex-
pression and right to be forgotten, the infor-
mation digitalisation process has given rise to
other unforeseeable phenomena: first, Julian
Assange and the “Wikileaks” case have
demonstrated that it is increasingly difficult to
keep information which is essential for nation-
al security secret; secondly, the enormous
flow of information circulating on the Internet
is very appealing to the world's governments
who see the opportunity to ensure the security
of their State through increasingly sophisticat-
ed forms of dataveillance24
.
The argument used to legitimise this form of
monitoring is very similar to the one used to
protect freedom of speech: the US has de-
clared in one of its campaigns on security that
“if you’ve got nothing to hide, you’ve got noth-
ing to fear” 25
. In his long essay designed to
refute the “nothing to hide” argument, Solove
maintains that indiscriminate collection of a
citizen’s personal and sensitive data by a
State authority, may seriously harm the citizen
in the event of loss and concurrent dispersal
of data or, above all, in case of incorrect eval-
uation of such data. He also observes that the
future will not be an Orwellian Big Brother, but
22
Mayer-Schoenberger, Viktor, Delete. The Virtue of Forgetting in the
Digital Age, Princeton University Press, 2010.
23
Jennings, Richi, Google CEO: if you want privacy, do you have some-
thing to hide?, in ComputerWorld, December 11, 2009 available at:
http://blogs.computerworld.com/15234/google_ceo_if_you_want_privacy
_do_you_have_something_to_hide.
24
Clarke, Roger, Information Technology and Dataveillance, 1991,
available at:
http://www.rogerclarke.com/DV/CACM88.html.
25
Solove, Daniel, Nothing to Hide: The False Tradeoff between Privacy
and Security, Yale University Press, 2011, p. 21.
will more closely resemble the future de-
scribed by Kafka in his Metamorphosis, as we
will increasingly come to rely on information
over which we lose control and which may be
used against us at the opportune time.
This is the privacy paradox of the third millen-
nium: on the one hand, public authorities
should regulate Internet more efficiently, pay-
ing particular attention to digital natives’ priva-
cy. On the other hand, it is feared that these
public authorities may conduct unlawful moni-
toring, supposedly with a view to protecting
citizens' national security.
3. Regulating global privacy
The fact that a handful of California-based
companies control around 2.3 billion users
(1.7 billion Google, 835 million, Facebook,
600 million Twitter26
) does not facilitate the
process of harmonising European and Cana-
dian privacy legislation with the American
one. Larry Page’s polite refusal to comply with
the request made by the Article 29 Working
Party to postpone amendments to Google's
privacy policy in Europe is a clear example of
the difficulties encountered by States to regain
their traditional regulatory and coercive pow-
ers.
In this case too, amongst the possible rea-
sons for this difficulty, two stand out.
The first is that Europe, (to which Canada can
be associated on grounds of cultural affinity)
and United States have two very distinct con-
cepts of privacy. For insight into the reasons
underlying this difference in approach, one
needs to consider that the data protection
laws adopted by the German Land of Hessen
in 197027
, followed by Sweden in 197328
, the
Federal Republic of Germany in 197729
and
France in 197830
, as well as the European Di-
26
Stats available at:
http://www.Internetworldstats.com/facebook.htm and
http://twopcharts.com/twitter500million.php, last update March 31, 2012.
27
Datenschutzgesetz (Data Protection Act) of 1970, available (in Ger-
man) at:
http://www.datenschutz.rlp.de/downloads/hist/ldsg_hessen_1970.pdf .
28
The Data Act, 1973 available at: http://archive.bild.net/dataprSw.htm.
29
Bundesdatenschutzgesetz (BDSG) [Federal Data Protection Act) of
1977, available in English at:
http://www.iuscomp.org/gla/statutes/BDSG.htm.
30
Loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et
aux libertés, available (in French) at:
http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=LEGITEXT00000
6068624&dateTexte=20101103 .

6. © by Tech and Law Center – www.techandlaw.net 6
rectives 95/46/EC, 2002/19-20-21/EC,
2006/24/EC and 2009/140/EC, are all based
on the same groundwork: the European Con-
vention on Human Rights (ECHR).
Although Article 8 of the ECHR entrenches
the principle that “everyone has the right to
respect for his private and family life, his
home and his correspondence”, unlike the
Fourth Amendment of the U.S. Constitution,
the second paragraph of the cited article
seems to accept with far greater “resignation”
possible interference by public authorities in
the exercise of this right, to the extent “neces-
sary in a democratic society in the interests of
national security, public safety or the econom-
ic well-being of the country, for the prevention
of disorder or crime, for the protection of
health or morals, or for the protection of the
rights and freedoms of others”31
.
According to Whitman, the conflict between
the Fourth Amendment set forth in the Bill of
Rights, and Article 8 of the ECHR bears wit-
ness to the very different approaches to pri-
vacy that have developed on the opposite
sides of the Atlantic as a result of profoundly
divergent ideologies, with the emphasis being
placed on freedom in the U.S. and on human
dignity in Europe32
.
These distinct ideologies arose as a by-
product of the history of each continent. In
Europe, where for centuries dignity had been
the preserve of the aristocracy, the craving to
extend its benefits to all became the driving
force behind the social struggles of the past
two centuries, whilst on the other side of the
Atlantic, it was the libertarian push for free-
dom that led to the American revolution and
laid the groundwork for the U.S. legal system.
European data protection laws tend to safe-
guard personal privacy against what is per-
ceived as its greatest threat, and that is to
say, above all, the media and the dangers
posed by the information society with the
31
This is clearly illustrated in the case Leander v. Sweden (European
Court of Human Rights, decision dated March 26, 1987, 9 EHRR 433,
paragraph 59) in which it was held that a person who was denied securi-
ty clearance for a job at a Naval Museum on the basis of information
contained in secret police files that were not made available to him, did
indeed sustain prejudice to his rights pursuant to Article 8(1) of the
ECHR, but was not entitled to any remedy since his rights had been
violated in pursuit of a legitimate aim under Article 8(2) of the ECHR, and
that is to say, the protection of national security.
32
J. WHITMAN, The two western cultures of privacy: Dignity v. Liberty, in
The Yale Law Journal, vol. 113, no. 6, at page 1151.
emergence of new technologies. In the U.S.
on the other hand, privacy laws are designed
to protect the inviolability of private premises
against what Americans perceive as most
menacing to their personal affairs, i.e. gov-
ernment intrusion.
More trusting in tate power than their U.S.
counterparts, Europeans have fewer qualms
about surrendering some of their personal
freedom to the government, although they
are highly intolerant of any intrusion by the
media, old or new. Americans, on the other
hand, take the Jeffersonian33
view of freedom
of the press as a basic constitutional value,
but they have no taste for European bureau-
cracy that can interefere also with the names
parents may give their new-born children.
Europeans are at a loss to comprehend the
leeway enjoyed by U.S. banks to conduct
credit checks on their customers, and find it
difficult to countenance the cordial straight-
forwardness with which their American
friends inquire about how much they earn.
For Americans, mandatory identity cards are
unacceptable, quite like the nonchalant nudity
in which certain European celebrities indulge
(clothes being the last frontier of the “home”).
The second reason is that the remedies put
forward to harmonise privacy in Europe and
the United States have so far not obtained
any particularly effective result. As Zimmer
correctly observes, the 2000 Safe Harbor
Agreement between Europe and the United
States 34
is a clear example:
“While U.S. based companies are forced to
provide more privacy protections than U.S.
law demands, the Safe Harbor provisions
are weaker than the full European Directive
on Data Protection.”
The new European privacy regulations35
offer
interesting food for thought, including the in-
33
“Our liberty cannot be guarded but by the freedom of the press, nor
that be limited without danger of losing it” Thomas Jefferson, letter to
John Jay, 1786.
34
2000/520/EC: Commission Decision of 26 July 2000 pursuant to Di-
rective 95/46/EC of the European Parliament and of the Council on the
adequacy of the protection provided by the safe harbour privacy princi-
ples and related frequently asked questions issued by the US Depart-
ment of CommerceEuropean Commission’s decision of 26 July 2000,
no. 2000/520/EC, available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000D0520:EN:H
TML.
35
Regulation of the European Parliament and of The Council on the Pro-
tection of Individuals with regard to the Processing of Personal Data and
on the Free Movement of Such Data (General Data Protection Regula-

7. © by Tech and Law Center – www.techandlaw.net 7
troduction of a single piece of legislation for
the entire European Union (as opposed to dif-
ferent laws for each individual State) as well
as a clearer, more coherent definition of “main
establishment”. However, there is no shortage
of controversy: for example, the United States’
attitude is diametrically opposed to the Euro-
pean Union’s one on cookies. Users in the
United States are entitled to refuse the use of
cookies for marketing purposes, but they are
not entitled to give prior consent. In any case,
if and when the regulation becomes effective,
much will have changed, considering the
speed with which Internet evolves.
4. Conclusions
The combination created both by the speed of
Internet evolution and by the absence of the
"State" has ushered in an expansion in the
global exchange of information process,
which has surely fostered liberty of expression
to the detriment of privacy and other funda-
mental rights.
I am not convinced that the right balance can
be found solely by entrusting private compa-
nies with the task of managing this wealth of
information; by the same token, I am not con-
vinced that it is possible to obtain this result
through robust regulatory activity by the State
which could inevitably risk having a direct or
indirect impact on the freedom of expression
which Internet allows.
Instead, I am of the opinion that it is funda-
mental, in a society which is evolving so fast,
to pay the utmost attention to the new genera-
tions who are about to adopt Internet by
providing an appropriate answer to the follow-
ing questions: What will the balance of inter-
ests be which must be achieved between pri-
vacy vs transaparency, secrecy vs security,
reputation vs freedom of expression in a world
of Internet which is increasingly regulated by
Moore’s Law, rather than by State legislation?
I would not be so presumptuous as to claim to
have the answer to such broad questions,
questions which may have a dramatic impact
on the world of Internet as we know it today. It
is however beyond dispute that, ever since
tion), 2012/0011 (COD), available at: http://ec.europa.eu/justice/data-
protection/document/review2012/com_2012_11_en.pdf.
Warren and Brandeis36
, the concept of privacy
has been remodelled several times due to the
relentless development of the information so-
ciety.
In this context, we have to bear in mind the
guidelines provided by the Vice President of
the European Commission Responsible for
the Digital Agenda Online, Neelie Kroes, on
the importance of promoting international
agreements and providing incentives for self-
regulatory mechanisms. Even if these guide-
lines run the risk of providing weaker legal
protection, they may certainly foster greater
efficacy in the application of global privacy
rules for digital natives and digital immi-
grants37
.
36
Warren, Samuel and Brandeis, Louis, The Right to Privacy, in Harvard
Law Review. Vol. IV, December 15, 1890, No. 5, available at:
http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_br
and_warr2.html.
37
Kroes, Neelie, Privacy: Reinforcing Trust and Confidence Online
Tracking Protection & Browsers, Workshop Brussels, 22 June 2011,
available at:
http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/11/
461.

8. © by Tech and Law Center – www.techandlaw.net 8
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