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While dealing with the issue at the heart of this paper a fundamental question has to be tackled in greater depth: is the right to access to the Internet a human right (or a fundamental right: below is my attempt to introduce a terminological clarification in this regard) which enjoys a semantic, conceptual and constitutional autonomy? In other words, is access to the Internet an autonomous right or only a precondition for enjoying, among others, freedom of expression? Why does the classification as a free-standing or derived right matter? Does it carry normative implications or is it primarily a rhetorical tool? In trying to answer those questions, it may perhaps be beneficial to resist the temptation to rely on a “rhetoric” of fundamental rights and human rights, which is widespread throughout the various debates concerning the relationship between law and technology after the rise of the Internet. The language of rights (especially new rights) in Internet law is more than (rhetorically) appealing.
This chapter focuses on m-Health, i.e. technologies offered through mobile devices with particular regard to those having a specific health purpose. The contribution highlights that the mass use of these technologies is raising many challenges to national and European legislators, who are now facing a twofold task: assuring safety and reliance of the data generated by these products and protecting patients/consumers’ privacy and confidentiality. From the first perspective, such software may sometimes be classified as medical devices, although this classification is not always easy since there could be “border-line products”. If a software is classified as a medical device, then its safety and efficacy are guaranteed by the applicability of relevant regulations, which dictate specific prerequisites, obligations and responsibilities for manufacturers as well as distributors. From a data protection perspective, the mass use of these technologies allows the collection of huge amounts of personal data, both sensitive data (as relating to health conditions) and data that can nonetheless contribute to the creation of detailed user profiles.
This handbook intends to offer a comprehensive and authoritative overview of the human rights implications of emerging technologies in the fields of life sciences and information and communication technologies (ICT). To this end, the volume brings together leading experts whose expertise encompasses several disciplinary domains (law, ethics, technology, basic science, medicine, business etc.) with the purpose of gathering extensive multidisciplinary knowledge about the evolutive transformation of the human rights framework in response to technological innovation.
Debates on the human-rights implications of new and emerging technologies have been hampered by the lack of a comprehensive theoretical framework for the complex issues involved. This volume provides that framework, bringing a multidisciplinary and international perspective to the evolution of human rights in the digital and biotechnological era. It delves into the latest frontiers of technological innovation in the life sciences and information technology sectors, such as neurotechnology, robotics, genetic engineering, and artificial intelligence. Leading experts from the technological, medical, and social sciences as well as law, philosophy, and business share their extensive knowledge about the transformation of the rights framework in response to technological innovation. In addition to providing a comprehensive, interdisciplinary, and international state-of-the art descriptive analysis, the volume also offers policy recommendations to protect and promote human rights in the context of emerging socio-technological trends.
A well-regarded scholar has correctly pointed out that ‘populism has a problematic relationship with constitutionalism’.1 It would be too ambitious to investigate the several ways in which such a problematic relationship has been framed,2 and, especially, the different perspectives which have been undertaken in order to investigate it.3 The aims of this chapter are much narrower.
Technologies have always led to turning points for social development. In the past, different technologies have opened the doors towards a new phase of growth and change while influencing social values and principles. Algorithmic technologies fit within this framework. Although these technologies have positive effects on the entire society by increasing the capacity of individuals to exercise rights and freedoms, they have also led to new constitutional challenges. The opportunities of new algorithmic technologies clash with the troubling opacity and lack of accountability. We believe that constitutional law plays a critical role to address the challenges of the algorithmic society. New technologies have always challenged, if not disrupted, the social, economic legal and, to an extent, the ideological status quo. Such transformations impact constitutional values, as the state formulates its legal response to the new technologies based on constitutional principles which meet market dynamics, and as it considers its own use of technologies in light of the limitation imposed by constitutional safeguards. The primary goal of this chapter is to introduce the constitutional challenges coming from the rise of the algorithmic society. The first part of this work examines the challenges for fundamental rights and democratic values with a specific focus on the right to freedom of expression, privacy and data protection. The second part looks at the role of constitutional law in relation to the regulation and policy of the algorithmic society. The third part examines the role and responsibilities of private actors underlining the role of constitutional law in this field. The fourth part deals with the potential remedies which constitutional law can provide to face the challenges of the information society.
Technologies have always challenged, if not disrupted, the social, economic legal, and to an extent, the ideological status quo. Such transformations impact constitutional law, as the State formulates its legal response to the new technologies being developed and applied by the market, and as it considers its own use of the technologies. The development of data collection, mining, and algorithmic analysis, resulting in predictive profiling – with or without the subsequent potential manipulation of attitudes and behaviors of users – presents unique challenges to constitutional law at the doctrinal as well as theoretical levels.