CHAPTER TWO

THE SCOPE AND NATURE OF TECHNOLOGY AND ITS EFFEECTS ON THE

RIGHT TO PRIVACY

2.1 INTRODUCTION
This chapter will mainly concentrate on the concept of technology and show how technology
is affecting the right to privacy. The following framework is used: preliminary definition of
some key terms that are useful in this chapter; the nature and scope of technology and how
technology can be regarded as a threat to privacy. It is going to be shown in this chapter that
the continuous advancement in technology is causing a lot of problems in the enforcement
and protection of the right to privacy.

2.2 PRELIMINARY DEFINITIONS OF KEY TERMS

In this section the researcher provide preliminary definitions of certain key terms frequently
used in the dissertation. More information about these terms is going to be addressed in
greater detail in the chapters of this dissertation.

2.2.1 Privacy
Privacy is not a stagnant concept which means that its definition may change over time. Its
meaning and content are also influenced by the particular jurisdiction and cultural
background involved. Therefore, the concept of privacy is not an easy one to define1. The
term privacy has no single definition. In general privacy can be defined as the state of being
free from unwanted or undue intrusion or disruption of one's private life or affairs. Privacy
can be defined as a concept of the ‘right to be left alone’ and to enjoy a personal space free
from interference and scrutiny2 The term privacy is also defined as the right to selective
disclosure and one person’s loss of privacy is another’s gain in intimacy3

2.2.2 Infringement of privacy

A person’s privacy may be infringed in different ways or through different acts. Privacy is
factually infringed when outsiders become aware of true personal facts about the individual
1
Bernstein v Bester 1996 (2) SA 751 (CC)
2
R Parveen, Protection of Privacy in India in Vol 1 No 1 Law and
JuridicalConcerns:[Link]
3
P Gavin & F Heklen, Breach of Confidence as a Privacy Remedy in the Human Rights Act Era, Modern Law
Review in Vol 63 No 1
Published for the Modern Law Review limited by publishers, 2000.

1
against his or her will.4 A violation of the right to privacy can occur in one of two ways:
either through an act of disclosure or an act of intrusion. While the act of disclosure occurs
when someone else divulges the information to the third party, the element of intrusion
indicates that the third party acquired this knowledge on their own.5

An example of infringement of privacy by privacy intrusion is obtaining admission to a

private property, reading private correspondence, listening to private conversations, stalking
someone, searching someone or their belongings, and performing unauthorized medical
examinations are examples of privacy invasion via intrusion. Reading a private e-mail or
breaking into someone's social network profile. This can be known as hacking because
hacking involves an aspect of gaining authorized access to someone’s account by exploiting a
weakness in the computer system or computer network.

The infringement of the right to privacy of privacy infringement through disclosure are the
disclosure of private facts which have been acquired by a wrongful act of intrusion, and the
disclosure of private facts in violation of a confidential relationship.6

2.2.3 Personal data

In order to come up with a good appreciation on the impact of modern technologies which are
constantly evolving on privacy, it is also essential to define the term personal data. In general
personal data any information relating to an identified or identifiable natural person who is
known as the data subject. Personal data can be defined as the information or data that is
linked or can be linked to individual persons.7 The examples include the information such as
a person‘s date of birth, sexual preference, religion and even place of residence.
Furthermore, personal data can also be understood in the form of behavioral data, for
example from social media that can be linked to individuals.

2.2.4 Technology

According to Merriam Webster dictionary, technology is defined as the improvements in

technical processes that increase productivity of machines and eliminate manual operations or
operations done by older machines.8 For the purpose of this research the definition that was

4
J Neethling, J M Potgieter & P J, Visser Law of Personality, 2015.
5
Ibd.
6
Bernstein v Bester 1996 2 SA 751.
7
A Mantelero ,Personal data for decisional purposes in the age of analytics: From an individual to a collective
dimension of data protection. Computer law & security review, 2016.
8
Merriam Webster Dictionary (1822).

2
propounded by Van Brakel will be used. According to Van Brakel, technology can be
understood as the aspect of gathering, organizing, storage and distribution of information in
various formats by means of computer and telecommunications techniques based on micro-
electronics.9 It is important to note that technology has no single definition however, in this
chapter the researcher is going to unpack a lot by showing how technology is affecting the
right to privacy.

2.2.5 Information Communication Technology

Information communication technology may be defined as the electronic means of capturing,

processing and distributing information including the digital and analogue technologies such
as computing, broadcasting and the internet.10 The term is generally accepted to mean all
devices, networking components, applications and systems that combined allow people and
organizations such as businesses, non-profit agencies, governments and criminal enterprises)
to interact in the digital world.

2.3 THE NATURE OF TECHNOLOGY AND ITS EFFECTS ON THE RIGHT TO

PRIVACY

The advancement in information technology has made it very easy for people to collect the
vast amount of personal data with very little effort for example by the mere click of a
mouse.11The amount of information that can be stored or processed in an information system
depends on the technology used. This dissertation is going to show the various technologies
that can be used to transfer information.

2.3.1 The developments in Information Technology

The developments in technologies have changed our practices of information provisioning.

Pervasive technology often leads to unintended consequences, such as threats to privacy and
changes in the relationship between public and private sphere. 12 This is heralded by a variety
of Internet contexts, applications and devices. There is need for careful consideration of the
effects of advancement in Information technology. This is because connectivity and
interaction have received a lot of attention, both technically and physically. Information is

9
J Britiz, Technology as the Threat to Privacy: Ethical Challenges to the Information Profession.
10
J Whittaker, The cyberspace handbook. Psychology Press, 2004.
11
C Kuner, An International Legal Framework for Data Protection: Issues and Prospects, Computer Law &
Security Review, 2009.
12
D Bernhard, Jennette & Lovejoy, Journal of Computer-Mediated Communication: Facebook and Online
Privacy: Attitudes, Behaviours, and Unintended Consequences doi:10.1111/j.1083-6101.2009.01494.x.

3
now accessed everywhere and physical location has lost some of its significance, and social
interactions have changed as well.

2.3.2 Internet

The Internet is one of the platforms that are being used by people to infringe the right of
people to privacy. Internet is originally conceived in the 1960s and developed in the 1980s as
a scientific network for exchanging information, was not designed for the purpose of
separating information flows.13 However, the World Wide Web of today was not foreseen,
and neither was the possibility of misuse of the Internet. People are now abusing the use of
and purposes of internet. It is assumed that sharing with close friends would not cause any
problems, and privacy and security only appeared on the agenda when the network grew
larger. Due to the advancement in technologies individuals can now share vast information
that involves the personal data.

A major theme in the discussion of Internet privacy revolves around the use of cookies. 14 In
general cookies can be defined as the small pieces of data that web sites store on the user’s
computer, in order to enable personalization of the site. Cookies are defined by the IAPP as
small text files stored on a device that may later be retrieved by a web server 15 It is important
to note that the cookies can be used to track the user across multiple web sites. People are
now using tracking cookies to collect information of the data subject without the proper
consent of the victims. The cookies may be used to identify the sites visited by the data
subject by tracking the browsing history. This is also supported by Roberts J who has it that
the recent development of cloud computing increases the many privacy concerns.16 Therefore
one can argue that the new technologies are used to kill the individuals’ right to privacy.

In European countries there is an example of lawsuits whereby individuals are involved in

collecting and selling of personal data and this have led to vicious battles between different
states and the use of consumer data. An example is the United States lawsuit titled “where
does the Info go?” In short, the he lawsuit claims people’s exact location data was sold
through a chain of industry players, rather than the summary or analysis of that information,

13
J Abbate, Inventing the internet. MIT press, 2000.
14
J Van den Hoven Blaauw, M Pieters & M Warnier, Privacy and information technology, 2014.
15
International Association of Privacy Professionals, ‘Glossary of Privacy Terms’ (IAPP, 2018) accessed 10 21
April 2023.
16
J C Roberts & Al-Hamdani, Who can you trust in the cloud? A review of security issues within cloud
computing. In Proceedings of the 2011 Information Security Curriculum Development Conference, 2011.

4
without knowledge or permission.17 Data brokers can collect personal data from a variety of
sources, including social media, public records and other commercial sources or companies.
These firms then sell that raw data, or inferences and analysis based on that data such as a
user’s purchase and demographic information to other companies without the knowledge of
the data subject.

People can also use search queries to collect data. Rachovitsa stresses that the online privacy of
consumers can be abused through invasive digital tracking. 18The search engine companies can
track and save consumer search queries. Than that, the operating systems can also be used to
track and collect the personal data.19 This occurs when a computer logs data of one’s Internet
use. If the machine is exposed to a third party legitimately or not that party can learn the
websites that the data subject use frequently. This can enable the third party to have access to
read emails and also to know the bank accounts of the data subject.

2.3.3 Social Media

Social media is another technological advancement that is used to cause glitches in the
protection and enforcement of the right to privacy. “Social media is a digital technology that
facilitates the sharing of text and multimedia through virtual networks and communities”20 It is a
collective term for websites and applications such as Facebook, Twitter, Instagram, and
Snapchat. They facilitate the sharing of information. 21 By its design as an online tool it provides
users with the quick electronic communication of content. The content may include documents,
personal information, photographs and videos. The users engage with social media via a
computer, tablet or smartphone and often using it for messaging. Scammers can take advantages
of the large amount of data on user social media accounts. They can find enough information to
spy on users. Scammers can also use social media to steal identities.22 The data protection issues

17
United States lawsuit “Where does the infor go” February 2022 .The lawsuit shows every time that user
information changes hands, the data becomes newly vulnerable.
18
A Rachovitsa, Engineering and lawyering privacy by design: understanding online privacy both as a technical
and an international human rights issue, 24 International Journal of Law and Information Technology2016.
19
E Freeman & D Gelernter, Lifestreams: A storage model for personal data.1996.p80-86.
20
R Guy, The use of social media for academic practice, A review of literature. Journal of Higher Education,
2008. p.7.

21
Ibid.
22
T Nagunwa, Behind identity theft and fraud in cyberspace: the current landscape of phishing vectors.
International Journal of Cyber-Security and Digital Forensics (IJCSDF) 2014.p.72-83.

5
and loopholes in privacy controls can put user information at risk when they are not effective
enough.23 According to Alvarez T, the other social media privacy issues include the following,

Data mining for identity theft.

To steal someone's identity, scammers don't need a lot of information. To help them find
victims, they can start by using information that is readily available online. To target customers
with phishing scams, for instance, con artists can collect usernames, addresses, email addresses,
and phone numbers.24 A fraudster can still find more information, such as leaked passwords,
Social Security numbers, and credit card details, even with just an email address or phone
number.

Privacy-related flaws

The privacy related flaws are also used to collect the personal data. 25Accounts on social media
might not be as private as users believe. For instance, if a user shared something with a friend
and the friend reposted it, the information is also visible to the friend's friends. The audience for
the information that the original user reposted has changed significantly. 26 Due to the possibility
of postings including comments, being searchable, even closed groups may not be fully private.
Social media pose additional challenges in the protection and promotion of the right to privacy. 27
Social media is used as a hotspot in the sharing information by individuals.

2.3.4 Mobile devices

There is an increase in number of people who own networked devices such as smart phones
and laptops. They may use those mobile devices to collect and send more and more data. The
scientific researches shows that these devices contains a range of data-generating sensors,
including GPS (location), movement sensors, and cameras, and may transmit the resulting
data using the Internet or other networks. As an example the devices are being used to find
location data. The mobile devices such as iPhones can be used in downloading the contents of

23
RH Weber, Internet of Things–New security and privacy challenges. Computer law & security review, 2011.
p.23-30.
24
T Alvarez & H C Chen., Meta-Analysis of social networking sites for the purpose of preventing privacy
threats in the digital age. Journal of Applied Data Sciences, 2021 p.64-73.
25
Ibid.
26
X Zhou, The political blogosphere in China: A content analysis of the blogs regarding the dismissal of
Shanghai leader Chen Liangyu. New Media & Society, 2009p.1003-1022.
27
J Guhl, O Marsh & H Tuck, Researching the Evolving Online Ecosystem: Barriers, Methods and Future
Challenges, 2022.

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people’s address books to every weather app under the sun selling location data. 28 Many
mobile devices have a GPS sensor that registers the user’s location. The location data links
are used in the online world to identify the user’s physical environment, with the potential of
physical harm and stalking, this can be considered to be sensitive as they promote the acts of
intrusion29. A lot of these devices have cameras which can be used to take pictures. The users
can record and collect private data by use of cameras. Therefore, one can argue that the
advancement in technology has become a serious threat in the enforcement of the right to
privacy.

2.3.5 The Internet of Things

Internet-connected gadgets are not just restricted to consumer electronics like smartphones.
Numerous objects have chips and or are linked together to form the so-called Internet of
Thing. The researches proved that the Internet of Things will develop into the Internet.
Human-human communication will give way to human-human, human-thing, and thing-thing
(also known as M2M) kinds of communication. This will usher in a new era of omnipresent
computers and communication and fundamentally alter people's lives. 30 Despite the potential
benefits, the Internet of Things is expanding quickly, raising serious privacy concerns.
Internet of Things devices have the ability to gather a ton of detailed information on people's
daily routines and activities31. These gadgets are capable of gathering information about
locations and health status.

There are three core domains that fit under the umbrella of Internet of Things (IoT). These
are:

 Wearable IoT—devices that people can wear as accessories, such as watches, for
monitoring an individual’s activities or vital signs.

 Household IoT—devices that sit in people’s homes, such as smart speakers and
thermostats.

28
T Klosowski, How Mobile Phones Became a Privacy Battleground and How to Protect Yourself, 2022.
29
J Van den Hoven, M Blaauw W Pieters & M Warnier, Privacy and information technology, 2014.
30
L Tan & N Wang, N, August. Future internet: The internet of things in Vol 5, 3rd international conference on
advanced computer theory and engineering, 2010, p. V5-376.
31
J Holler, V Tsiatsis, C Mulligan, S Karnouskos, S Avesand & D Boyle, Internet of things. Academic Press,
2014.

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  Public IoT—devices that are used in public places, such as smart water meters,
autonomous vehicles, and Bluetooth beacons.32

Wearable Internet of Things

These are internet-connected devices which are made of various sensors that can be worn as
external accessories for example, watches and rings. They can also be implanted in textiles
such as smart shoes or jackets.33 Sensors can collect the movement and vital signs of
individuals. The other wearable devices aim to help users by monitoring their interaction with
the world around them. They can be used for Google Glass, allowing people to capture audio
and video of their daily lives. “All wearable devices share a common goal of automatically
and unobtrusively recording an individual’s physical interaction with the world.”34 Yet,
audios from the environment are usually considered private and users desire strong
protections against recordings being accessed without their knowledge or control. This shows
that the internet of things can be used to violate the right of privacy.

Household IoT Domain

These are the other changes that are brought by technology. The smart home devices allow
for remote monitoring and operation of parts of a home. The examples of such devices
include, thermostats, lights and door locks. It is important to express that many smart devices
aim to increase the convenience and automation of the home. And this is done to protect the
home. However, considering the fact that they allow recording of videos and audios they can
contribute in the violation of individuals ‘right to privacy. The video and audio from inside
the home are usually considered private and users desire adequate protections against
recordings being accessed without their knowledge or control.35

Public IoT Domain

In some developed countries IoT technology has also gained popularity in public
infrastructure through smart cities and smart buildings.36 Public IoT infrastructure brings a
number of challenges in the information society. A notable example is the New York City
32
H L Richter, T Madiha & P Bahira, Privacy and the Internet of Things: Modern Socio-Technical Perspectives
on Privacy, 2022 ISBN: 978-3-030-82785-4.
33
Ibid.
34
Ibid.
35
Ibid
36
Ibid.

8
Department of Transportation integrated a congestion management system that uses public
Internet of Things to determine traffic speed at 23 intersections in Midtown Manhattan 37. It is
not important to leave any stone unturned because people can use these public IoT to gather
the information of other people without their knowledge. They can collect information about
the surrounding environment, including people who are walking on the street, other vehicles
on the road, and nearby store information.38 In addition, the drivers and passengers who sit in
the car also face a large amount of data collection during their ride. Their daily schedule can
be easily identified.

2. 6 Surveillance

Information technology is employed in a variety of surveillance-related jobs.39 It can be used

to supplement and expand conventional surveillance systems like CCTV and other camera
systems, for instance, to identify certain people in crowds using facial recognition technology
or to keep an eye out for undesirable behavior in particular locations. When paired with
additional strategies, such monitoring Internet-of-Things devices, such approaches become
even more effective. Social media and other online systems are used to collect a lot of data
about people, either “voluntary” because users subscribe to a particular service such as
Google or Facebook or "involuntary" because data is collected about users in less transparent
ways.40 In addition, government can also use surveillance tactics on a wide scale to collect
personal data.41This could be done by intelligence agencies or law enforcement. This could be
considered unwelcome from the perspective of privacy because it not only offers
governments access to private talks but also because it reduces the overall security of
communication systems that use this technique.

37
Nyc midtown congestion management system. Accessed April 29, 2023.
[Link]
38
CJ Bloom, J Tan, L Ramjohn, Self-driving cars and data collection: Privacy, 2017.
Perceptions of networked autonomous vehicles. In Thirteenth Symposium on Usable Privacy, And Securit,
Santa Clara, CA, 357–375. San Francisco Bay: USENIX Association, 2017.
39
A M Watkins, S J Coopman, J L Hart & K LWalker, Workplace surveillance and managing privacy
boundaries in Vol 21 No 2 Management Communication Quarterly.
40
J Van den Hoven, M Blaauw, W Pieters & M Warnier, Privacy and information technology.2014.
41
D Lyon, Surveillance society, McGraw-Hill Education, 2001.

9
2.7 E-Government

Government and public administration have drastically changed as a result of the accessibility
of cutting-edge IT technology. There is use of online e-government services such as voting
registrations through the use of bio metrics. The e- government unity in the office of the
president is another service. Another example is the e-service zim connect portal and other e-
government and technical innovations. Due to these innovations there is a rampant of online
access to public’s personal data. The national government digitization, though it is a good
move, it can also contribute to the violation of individual’s right to privacy.42 In comparison
to other regions of the world, the utilization of information and communication technologies,
such as those required to provide e-Government services, is relatively low in most African
countries. Previously, the earth was referred to as a "technological desert." 43Therefore, to
effectively prevent the violation of the right to privacy there is a need for a long way to go.

2.6 CONCLUSION

In conclusion, the advances in technology has heralded not just a new age but dangers to
constitutional rights such as the right to privacy. As shown above in this chapter, the internet
of things, social media, mobile devices and others they poses a great threat in the
enforcement and protection of the right to [Link] biggest social cost of new
technologies is the erosion of personal control in the handling of personal data.

42
A Munoriyarwa & A Mare, Mainstreaming Surveillance through the Biometrification of Everyday Life. In
Digital Surveillance in Southern Africa: Policies, Politics and Practices Cham: Springer International
Publishing.2023.
43
A Rorissa & D Demissie, An analysis of African e-Government service websites, Government information
quarterly, 2010.

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