Gender Identity, Personal Data and Social Networks: An analysis of the categorization of sensitive data from a queer critique/Identidade de Genero, Dados Pessoais e Redes Sociais: Uma analise da categorizacao dos dados sensiveis a partir de uma critica queer.
| Autor | Costa, Ramon Silva |
Introduction (1)
The Brazilian General Data Protection Law- Lei Geral de Protecao de Dados- (LGPD - Law 13.709/2018), in force since September 2020, determines the duties and obligations of agents that carry out operations for the processing of personal data. The law also consolidates a series of rights and guarantees of the natural persons to which the data refer--the so-called data subjects.
In the categorization of that data, the LGPD introduces a list of sensitive personal data (art. 5, item II) that has a distinct regime of obligations. In this list, the law mentions, objectively and explicitly, data on sexual life, not specifically addressing data related to gender identity, that is, the way in which the person expresses the gender with which he/she identifies. As this data is not simply related to biological factors, but mainly to personal, social, and cultural issues, the questions that guide this research arise: 1) How is data on gender identity processed and protected? 2) What are the possibilities and justifications for categorizing gender identity as sensitive data?
In this regard, classifying gender data as sensitive may be a necessary protective measure when we think about the Brazilian context, where systemic violence directed at the LGBTQIA+ (2)population occurs, especially to people outside the cisgender conformation, susceptible to suffering more physical violence only because of their identity. According to surveys carried out by the National Association of Transvestites and Transsexuals (ANTRA), in 2020, 175 transvestites and transsexual women were murdered, a number that represented an increase of 41% compared to the previous year. Among the victims, 78% were black and 72% were sex workers (BENEVIDES; NOGUEIRA, 2021).
The inadequate processing of information about the gender of trans or non-binary (3) people can seriously violate their personalities, creating contexts of discrimination for an already extremely marginalized population. Certain cases reveal how technologies and data processing can fuel violence based on the gender identity of vulnerable populations. Researchers Mariah Rafaela Silva and Joana Varon developed a study on the use of facial recognition in the Brazilian public sector and trans identities, in which they warn about the risks and discriminatory practices embedded in technology and data processing, which specifically affect the trans population. This scenario is aggravated by the lack of transparency, which makes it difficult to measure the harmful effects when assessing socioeconomic, racial, and territorial issues of trans people (SILVA; VARON, 2021).
Thus, given the normative silence, it is up to public and private agents, in the position of personal data controllers, to determine which interpretation to give to gender data. In this regard, interpretive alternatives are appropriate: (i) consider gender data as sensitive personal data, understanding that it is included in data about sexual life; (ii) consider it as sensitive personal data, understanding the list of art. 5 as an example and this information as autonomous and not related to sex life, starting from a contextual assessment, in accordance with art. 11, [section] 1st; and (iii) not considering it as sensitive personal data, considering the list of article 5 as exhaustive, and that the data is not covered by information about sexual life. Thus, the article explores which of the interpretations data controllers have been adopting in the country. Furthermore, the first and second interpretative possibilities are evaluated from the perspective of queer theory contributions.
In this context, this article seeks to analyze (i) how sensitive data is classified in the LGPD; (ii) how it would be possible to interpret data on gender identity as sensitive; and (iii) how personal data related to gender identity is handled by large companies. Therefore, the work presents an empirical investigation into the social networks Facebook, LinkedIn, and Tinder. Subsequently, interpretive ways are proposed to categorize gender identity as sensitive data, through the normative mechanisms offered by the LGPD, analyzed from a queer perspective.
1 Theoretical demarcation and methodological options
This research arose from the questioning about the limits and the strictness, or not, of the category of sensitive data brought by the LGPD, which does not consider data on gender or gender identity as sensitive. Therefore, this article gives special focus to non-cisgender people. Cisgenderity is based on a binary and biological pattern of man/male and woman/female This text focuses on other gender identities that do not correspond to this pattern, such as transsexuals, transvestites, agenres, non-binary, and fluid gender.
The research starts from a critique from the perspective of queer theory to the way in which the LGPD, as well as the socio-juridical structures that make up its field of implementation and applicability, are crossed and composed by heterocisnormativity (4). This criticism explains, in part, the express absence of gender identity as sensitive data in the Brazilian law for the protection of personal data. The criticism, however, does not end with verifying the legislative omission, but continues with the need to interpret the normative dynamically, so that it allows tensioning the structural elements of universality and neutrality of the law, which discriminate against people non-compliant with normativity. Thus, the objective of this work is not to reduce queer criticism to a theorization, but rather to propose a perspective of analysis and confrontation of heterocisnormative structures in legal norms that directly affect the protection of identities that deviate from normativity in contexts of personal data processing.
In this regard, queer theory can be conceived as a critical path capable of examining how "laws, court decisions, theories of law, in their categories and presuppositions" are elements produced and reproduced from the systematic logic of sexist and heteronormative devices that comprise a binary view of gender, which perpetuates violence against and the marginalization of people who do not meet the gender standards restricted to the biological idea of cisgenderness (RAMOS, 2020, p. 3) (our translation).
Teresa de Laurentis was the first to use the term queer academically at a conference in 1990, in which she denounced the heterosexist character of studies on sexual diversity at the time (DE LAURENTIS, 1991). The choice of the term queer, which can be translated as "weird" and which was understood as "a curse that denoted abnormality", serves to highlight a critique of the construction of normality, especially in terms of sexual and gender identity (MISKOLCI, 2009, p. 151) (our translation). However, the term was also redefined by social movements of LGBTQIA+ people, where the letter "Q" designates queer people, that is, those who do not meet gender norms.
Paul B. Preciado (2008) articulates the queer theory indicating that the norms of gender and sexuality have overcome a sense of separation between power and subjectivation. For the author, gender is an effect of discursive and visual practices that emanate from different institutional devices, such as the family, religion, school, the media, the biomedical, legal, and even cinema. The body, however, is not limited to a pre-discursive result, nor a purely biological fact, as it is also constituted in the relationship with the production of materials and technoscientific flows.
In this sense, a queer critique must involve issues that go beyond the constructions of identities that are categorized and marginalized and highlight the dehumanization effects of dissident bodies. Thus, discussing the protection of sensitive personal data must include a perspective on how data subjects cannot be neutralized as if their information locates them in the same social spaces and possibilities.
The articulation of queer criticism in law follows a process of contestation of universalist legal categories. Thus, the choice for the queer theoretical demarcation is an option for an analysis lens for the critique of law, especially to what concerns data protection legislation and its implementation, using data on gender identity as an analysis variable.
Thus, the search for empirical data appeared as a research demand, to understand whether the self-regulation of companies in the paths of data processing complies with the applicable legislation and if it would enable, by itself, the protection of gender identity as sensitive data.
Social networks were chosen because they are popular and because they make it possible to observe the interpretation of gender data in experiences with a great impact on the debate on data protection. Networks with different approaches were selected, namely: (i) Facebook as a social network for affinity and sociability purposes, with 130 million Brazilian users; (ii) LinkedIIn as a social network for work and professional contact, with 46 million users in Brazil; and (iii) Tinder as a network for relationships and encounters, with Brazil being the third country in the number of users (VOLPATO, 2021; ORAZEM, 2020; ALBACH, 2017).
The technique used to collect and evaluate research data was document analysis. The following documents were considered: (i) Facebook: Terms of Use, Data Policy; Ads Preferences, Help Center - LGPD Inquiries and Contacting the Data Protection Officer (DPO); (ii) LinkedIn: LinkedIn Help: Inferred Age or Gender on LinkedIn, LinkedIn Help: How LinkedIn uses demographic data, Preferences: Advertising Data and Contact LinkedIn Support; (iii) Tinder: Tinder's Terms of Use, Community Guidelines, and Security Center and Policy.
The analytical steps developed by researcher Andre Cellard (2008) were followed, who highlights the importance of a critical preliminary assessment of documents. Thus, we started from the...
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