Recording digital content takes place during the data indexing process, enabling the establishment of behavioral profiles and various identification means favorable to the categorization of individuals.
Data indexing and the constitution of behavioral profiles
Today, the notion of commercial traceability presents real strategic challenges in terms of profitability and the resale of data to advertisers (1). This is why companies are developing a panel of tracing tools and techniques to collect users’ personal data (2). (data, or the new black gold) But what about the legality of traceability in a globalized world?
The notion of traceability: a strategic stake
Traceability is a fairly recent notion in legal language. Long associated with scientific research, it now seems to be integrated into everyday language. Often used to attest to the safety and quality of a product or service, traceability is increasingly used. However, States have not managed to agree on a unanimous legal translation of the notion of traceability. Moreover, approaches diverge due to different conceptual origins and the diversity of legal instruments adopted to implement traceability systems. Despite the divergences, the emergence of traceability has profoundly modified the legal landscape regarding responsibility, quality, and safety.
Traceability is the means of finding the history, use, or location of an item or activity by means of a recorded identification. In general terms, a trace is defined as “a series of footprints or marks left by the passage of a being or an object, a mark left by any action; that by which one recognizes that something existed; what remains of a past thing.” Also, the notion of traceability entered into modern language is not subject to any classical acceptance. The notion of “trace” can be taken as the starting point of said analysis.
In computing, the word “traceability” can take various meanings. It may consist of “an ability to find the history, use, or location of an item or activity by means of a recorded identifier.”
Legal doctrine has also taken an interest in the traces that individuals could leave in time and space.
Generally speaking, these traces are part of the information system. Indeed, certain computer traces are left without people’s knowledge, via connection data or IP addresses collected during Internet browsing. This is one of the reasons why many users would like to see a strengthening of the right to anonymity and better respect for their privacy.
However, there are traces and then there are traces!
A voluntarily pre-constituted trace differs from non-voluntary proof, depending on the field concerned. Indeed, in criminal matters for offenses committed on digital networks, traceability is of greater importance. Regarding criminal evidence, it will in principle be necessary to seek to locate and identify the author of the offense or even preserve the items of evidence to materialize the offense. However, it is not always easy to find all the items of evidence, because these items are located on the territory of another State. The conservation of connection data can constitute material evidence favorable to the prosecution of the offender.
Anyway, there are three constraints to traceability on digital networks:
– anonymity, which allows users not to reveal their identity,
– the lack of data permanence through deletion or modification,
– the internationalization of their scope.
Regarding probative value, evidence is in principle the best way to demonstrate the existence of rights and legal situations, and its purpose is to convince the judge. In this sense, evidence can easily be provided by communication networks that keep every trace. It is important to determine to whom the act, which has left a mark in time, is attributable and if this act is the exact restitution of the content of the past act. However, with the progress of new technologies, traceability presents a real interest with regard to the law of evidence. In principle, the conditions for probative traceability are found in the guarantee of the integrity of the writing from its establishment to its restitution. It allows for the identification of the persons from whom the act emanates and determines the obligations of the parties.
The consecration of traceability was achieved within the framework of the adoption of the law of March 13, 2000, adapting the law of evidence to new information technologies and relating to electronic signatures.
Under the terms of article 1316-1 of the Civil Code, writing is perfect evidence from the perspective of the law of evidence of legal acts. Also, the trace understood as a mark or footprint left by a voluntary and past act, must also be analyzed according to the provisions of article 1316-1 of the Civil Code. Writing in electronic form must correspond to technical requirements. Indeed, “writing in electronic form is admitted as evidence in the same way as writing on paper, provided that the person from whom it emanates can be duly identified and that it is established and preserved under conditions that guarantee its integrity.”
In this way, the electronic trace can facilitate identification, but its implementation and conservation must be carried out under conditions that guarantee its integrity. For this, various digital tracing processes exist.
Tracing techniques
The main tracing tool is the “cookie,” which is a small file placed on the hard drive of a browser user. In principle, it can only be read by the server that placed it. It allows for the conservation of sessions and the management of “electronic shopping carts.” Indeed, after the user has authenticated for the first time, they remain connected for potentially other browsing sessions.
In fact, cookies are essential for publishers, but their exploitation remains limited to browsing within a single site. Indeed, the site publisher cannot follow all the Internet activities of its user, unlike the ad networks that insert advertising into web pages and can read all the cookies that are placed on all affiliated sites. On the other hand, ad networks can target the internet user with precision. Indeed, across all sites visited, there are form registrations that are used later by ad networks to link the collected information and the person who must be identified or identifiable.
Through targeted advertising, the user has become a “trace-document” that advertisers hope to monetize. This is the phenomenon of “redocumentarization.” All activities, data, and exchanges become documents, but moreover, these neo-documents, to be exploitable, must enter into classifications that extract keywords and forms of subdivisions and propose modes of exploitation by matching.
What belonged to archiving is today within everyone’s reach and shared by various professions from marketing to political analysts.
The individual himself becomes a “documented record” in a system that is realized through the superposition of profiles to cross information with keywords describing advertisements or resulting from automatic context analysis. The determination of these descriptor concepts uses the technique of “latent semantic indexing,” coming directly from research in documentary informatics. Indeed, it is possible to build a matrix with words that can subsequently be used for various purposes.
The words are then gathered around concepts adaptable to the construction of people’s profiles. It is not a matter of keeping track of the terms used in a search on a search engine, nor of all the sites visited, but of building an operational profile and attaching it to an individual, in anonymous mode, as long as the analysis network has not encountered a site on which they must authenticate.
In principle, a social platform can only “offer” an email and social connection service for free if the user authenticates to use these services and accepts advertisements, whose revenues are shared with each content publisher. In fact, there is no free service, but a simple return on investment. Therefore, the most optimal solution would perhaps be to limit the “log retention period,” thus avoiding perpetual conservation.
Note that “transparency” has long been a concern of public authorities. With the arrival of the Internet and new technologies, each individual has been able to take advantage of the dissemination and expression tools at their disposal to revalue their human rights. From now on, it is the individual who must become “transparent” for the public authorities. So transparent, that individuals become documents made from a mass of data, by means of which some can read like an open book.
The question then arises as to what will happen to everyone’s “Freedom” if the information condensed into “profiles” can serve to propose more diverse content, adapted to each person, targeted, personalized. Isn’t freedom linked to a form of mental manipulation?
If we stick to targeted advertising, the user only has limited freedom over their browsing and the suggestions made to them. What formerly had a sacramental value seems buried in mercantile considerations.
How to regulate the activity of the influence industry? How to raise awareness of tracing and calculation activities carried out on people? Answer in the next article.
