Artificial intelligence, the new threat to the right to privacy

December 23, 2021

The judicial field has yet to enter the world of artificial intelligence and invasion of privacy (Getty Images)

Parent, cited by Carlos Nino in “Fundamentals of Constitutional Law”, defines the right to privacy as the right not to have undocumented factual information for others about a person that it does not want them to be widely known.

This right can be affected by various actions. But one of them arises from modernity.

Our society has been modernizing by leaps and bounds, and in that technological advance we have given up some freedoms. In some cases consciously and in others unconsciously. But the area in which we have yielded the most is in the area of ​​privacy.

One of the most surprising technological advances in recent decades is artificial intelligence. It is the creation of computers, machines, capable of making decisions that previously only human beings could make. Minsky defines it: “Make machines do things that would require intelligence if they were man-made”.

And although it would seem that for some the concept of artificial intelligence is very far from us; reality tells us that it is linked to our social life, much more than we think. It surrounds us to where we cannot imagine it.

He takes us to work, indicates places of recreation, suggests places to visit, asks and answers us, and even tells us which series to watch or what music to listen to on various content platforms.

AI studies our consumption habits and for this it analyzes each step we take in cyberspace, even if we do not authorize it. And that’s where the conflict with our privacy begins.

Every time we give a “like”, every time we go to see a news item, every time we simply stop for a longer time in front of an ad, we are providing intimate information. The question is, do we really want to give that information? Do we really know how it is used? Do we want a company to use our data and our information?

Many apps ask us if we allow that access, however, there are others that do not.

Simply put, with various words or sound commands, a cell phone is activated and asks what the user’s need is. This indicates that the device was active all the time waiting for an order to be executed, but at the same time the cell phone’s microphone was always receptive.

It is worth asking then if the user is aware of this transfer of the private sphere in pursuit of a benefit or a comfort granted by technology; and where appropriate if it is really informed regarding its subsequent use.

I understand that in order for these privacy rights to cede, certain requirements must be met.

To do this, we must make an analysis of what is the purpose for which a right must be assigned. Parent, In reference to the right to privacy, the following questions are asked:

A) What is the purpose of searching for undocumented information?

B) Is that purpose legitimate and important?

C) Is the knowledge sought through the invasion of privacy relevant for the justifying purpose?

D) Is the invasion of privacy the only or the least offensive means to obtain that knowledge?

E) What procedural restrictions have been proposed to obtain this knowledge?

F) What protection has been imposed on personal knowledge, once it has been acquired?

I believe that none of these questions can be overcome by Artificial Intelligence used for example for marketing purposes.

A judge, to break into a home, must meet certain requirements, including You are required to have your search warrant founded and through it you can explain why you suspect that in a certain place you can find things related to an illegal act or detain a person. The same happens so that the judge can intervene a telephone communication

That is to say, In our country, a judge, in order to invade our privacy, needs to break the limits of the previously proposed examination; because that is what the law requires. However, these electronic devices do not.

Then certain questions arise. Can we put a limit to that? Can we put a limit on that growth? Can the law put a brake on technological advance? Is a legal regulation necessary?

The reality is that the law cannot go against progress. However, we must bear in mind that our freedom is seriously affected when our privacy is violated. And I understand that a modern society cannot be conceived, an intelligent society -artificial or not-, without the protection of fundamental rights such as privacy or freedom; Hence, the law must accompany these technological advances in safeguarding fundamental guarantees and regulate, through modern laws, the protection of the data obtained from the users.

* The author is Secretary of the National Criminal and Correctional Court No. 4.


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