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The political evolution of the Atlantic revolution that accompanied the construction of political Modernism went hand in hand with the evolution of rights. These rights made it possible to experience a full democratic citizenship and contributed to the definition of human dignity and the legal mechanisms to preserve them. It was not an easy endeavour. It required a historic generational effort. But, above all, painful experiences and collective oppressions that took a lot of time to heal and created the awareness in humanity of the need for a human rights structure that guarantees full human dignity on which the idea of citizenship rests.
At the dawn of the 21st century, humanity faces a digital age without rights. The paradigms of the world are changing. People face mutations that go from mindsets to the economy, culture, politics, and even the cognitive keys of our identity profoundly alter the way we organize our coexistence and our way of life. All of this without an environment of legal security that defines a coverage digital rights that frames the transition from analogical to digital.
Fortunately, a series of new initiatives and declarations regarding digital rights is emerging, that raise the normative bar and even defend the drafting of a digital constitution. The objective is to manage the negative externalities and equality deficits created by the lack of regulation in the digital revolution. A lack of regulation that, for example, has made it possible for monopolies to eliminate competition in the digital market; the qualitative and quantitative dimensions of inequalities; the materialization of a structure for real-time surveillance of our network behaviours and, above all, the gradual replacement of what we are for what we project through our digital fingerprint.
The new Organic Law 3/2018 of 5 December for Personal Data Protection and to guarantee digital rights, proposes in its statement of purpose, the appropriateness of specific Constitutional reforms in order to update it and “raise to a constitutional level a new generation of digital rights.” While this is happening, a first group of digital rights are being mentioned and recognised in our legal system. Some of the expected ones are the right to internet neutrality, universal access to the internet, digital security, education and digital protection of minors, rectification in the web, information updates by digital media outlets, privacy and the use of digital devices in the workplace, and those related to unplugging, video surveillance and geolocation in the workplace. In the same way, they regulate the digital rights to collective negotiation, not saving browsing history, portability and to the digital will.
The objective is to manage the negative externalities and equality deficits created by the lack of regulation in the digital revolution.
Therefore, we are in a kind of transposition of existing analogic rights to a digital environment. This means a legislative effort that stills falls short because the digital age requires from politics a new age of rights. Rights that are conceptually based upon a virtual base, not analogic, where the body is removed to give way to a different rights structure that prioritize peoples’ safety before pixel data and the mathematical architecture of the algorithms.
The judicial mindset should adapt their search for equality to this scenario. It must identify new legal provisions to supervise a generation of fundamental rights that protect the person in the digital world. Law faces the challenge of preventing the marginalization of human beings under the weight of determinism that is insinuated under posthumanism, and the negative externalities that are projected, in the workplace for example, artificial intelligence and robotics.
The foundation of this generation of digital human rights must be, without a doubt, the complete protection of human dignity. A protection that, to follow Kant, must consider the person as an end in itself. Remember that for Kant, humans cannot be instrumentalized, subordinated or marginalized to achieve other goals or objectives. A legal and moral limit that still serves today to regulate the technical progress and subordinate it to an egalitarian instrument to serve humans that does not obscure the liberty and responsibility of people over their actions. Around this principle, a generation of digital rights that expresses human heritage and adapts it to technological progress must be proposed.
Thus, we talk about rights that, from the human experience of what human dignity in the internet means, protects this dignity from the dislocations, inequalities and inequities that objectify human beings to technology driven processes. An effort that goes further than the notion of modern citizenship because it goes beyond our physical presence to a state community and integrate to a global society of data without a sovereign power to legislate it. An objective that will require the rule of law to think about a new digital citizenship that allows human beings to continue as the main protagonist and architect of its existence. Even in Big Data or, if it is preferred, inside the cyberleviathan.