Right to digital integrity as a new fundamental human right? Pro et contra

Chetverikov Artem Olegovich Doctor of Law Professor; Department of Integration and European Law; Federal State Autonomous Educational Institution 'Kutafin Moscow State Law University (MSAL)' 123001, Russia, g. Moscow, ul. Sadovaya-Kudrinskaya, 9 rossija-artem@rambler.ru Other publications by this author

Constitution of the Republic and Canton of Geneva 2012

(as amended in 2023)

Article 21A

The right to digital privacy

1. Everyone has the right to protect their digital privacy.

2. Digital privacy includes, in particular, the right to protection from unlawful processing of data related to one's digital life, the right to security in the digital space, the right to live offline, as well as the right to be forgotten.

3. The processing of personal data, for which the State is responsible, can be carried out abroad only to the extent that an adequate level of protection is provided.

4. The state creates favorable conditions for universal involvement in the digital environment and promotes public awareness of the challenges posed by digital technologies. It undertakes to support the development of Switzerland's digital sovereignty and cooperates in its implementation.

The right to digital inviolability in the system of fundamental human and civil rights and freedoms: general characteristics

Under the influence of new, primarily digital technologies, legal regulation, as well as public life itself, is becoming more and more technologically advanced. Computerization of a lawyer's work (from the use of electronic information and legal systems to the involvement of artificial intelligence in the process of law-making and law enforcement) is outwardly the most noticeable, but far from the only and, in fact, not the main manifestation of this phenomenon.

"The peculiarity of the current changes, which distinguishes them from all previous eras, is that the new technological order changes not only the usual way of life, but also the nature of legal regulation. The results obtained in physics, biology, medicine and other fields open up prospects for a new stage in the understanding of law, its categories — will, subject, legal norm, legal relations, the ideas of which have remained unchanged for the last two hundred years" ^{[1, p. 10]}.

The law of the XXI century is being technologized (digitalized) mainly due to the appearance of sources within it (sections, chapters, articles of sources) that are specifically devoted to (addressed to) relations, issues, problems arising from the use of technological innovations — from electronic signatures, other methods of digital identification or the functioning of the Internet (in particular in general and in individual components, for example, social networks) to electronic commerce, digital services, digital financial assets (cyber assets, cyber currencies), digital rights and obligations, digital civil turnover, etc. ^[2-5].

Hence, in modern legal science — both doctrinally and, more importantly, practically — a conclusion is drawn about the formation of new, also technological, branches of law and legislation based on the provisions of these sources: "digital law" ("computer law", "cyber law", "lex electronica") ^[6], "the rights of digital platforms" (or "platform law") ^[7], "the rights of the electronic (or digital) economy" (in some countries, the latter has already gained official recognition — for example, in Belgium, the title "The Law of the Electronic Economy" was assigned to one of the books of its Code of Economic Law, adopted in 2013 (Code de droit ?conomique (textes coordonn?s — Justel). [Electronic resource] — Access mode: <http://www.ejustice.just.fgov.be/eli/loi/2013/02/28/2013A11134/justel > (date of access: 05/19/2024); Great Britain in 2017 acquired the Law "On the Electronic Economy" (Digital Economy Act 2017 (2017 Chapter 30). [Electronic resource] — Access mode: <https://www.legislation.gov.uk/ukpga/2017/30/enacted/data.pdf > (date of application: 05/19/2024); In the Principality of Monaco, the Law "On the Digital Economy" appeared in 2011, and in 2019 received its modern name: the Law "On the Digital Principality" (Loi n° 1.383 du 2 ao?t 2011 pour une Principaut? num?rique. Version en vigueur au 1 mai 2024. [Electronic resource] — Access mode: <https://legimonaco.mc/tnc/loi/2011/08-02-1.383 /> (date of application: 05/19/2024)) etc.  

In the near future, the "law of artificial intelligence" will obviously be established in this series ^[8], the largest international milestone in the formation of which should be a unified legislative code in this area (or industry?) for the 27 member States of the European Union (EU) taken together (the draft EU Regulation "On the Establishment of Harmonized Rules on Artificial Intelligence (Legislation on artificial intelligence), approved in the first reading in early 2024, is planned to enter into force two years after its final adoption, presumably in 2026. (R?solution l?gislative du Parlement europ?en du 13 mars 2024 sur la proposition de r?glement du Parlement europ?en et du Conseil ?tablissant des r?gles harmonis?es concernant l'intelligence artificielle (l?gislation sur l'intelligence artificielle) et modifiant certains actes l?gislatifs de l'Union (COM(2021)0206 — C9-0146/2021 — 2021/0106(COD)). [Electronic resource] — Access mode: <https://eur-lex.europa.eu/legal-content/FR/TXT /?uri=EP%3AP9_TA%282024%290138> (accessed: 05/19/2024)).

Going beyond the scope of digital technologies, it is impossible not to mention the "right of the human genome", or "lex genomica", which is designed to legally regulate — in some ways limit and prohibit - scientific, experimental, medical and other types of interference in the human genetic code, which, on the one hand, can bring invaluable help in prevention and treatment of many diseases, detection of crimes, etc., on the other hand, fraught with enormous risks of modification in an unknown direction (destruction?) the human race homo sapiens, as such ^[9].

For a long time, technologization (digitalization) has hardly affected the most general and fundamental rights of the human person, which are usually enshrined in constitutions and other acts having the highest legal force — the basic rights and freedoms of man and citizen. It was believed, and continues to be considered by many to this day, that since fundamental rights reflect the basic values, needs and interests of people, they are pervasive in the sense that they protect a person from encroachments in all environments, including technological (the secrecy of correspondence extends to electronic correspondence using various kinds of messengers; freedom of thought and speech it also operates "on the Internet" — of course, within the limits established by the Constitution and, on its basis, by legislation, etc.).

However, in recent years, the situation has begun to change here, so that the use of digital terminology in constitutional texts, including when consolidating fundamental human and civil rights and freedoms, is no longer taboo. This is evidenced, in particular, by the inclusion in 2023 in the constitution of one of the members of the Swiss Confederation — the "Republic and Canton of Geneva" (this is its official name), the right to digital inviolability (French droit ? l'int?grit? num?rique), to which this article is devoted.

(For readers who are not familiar with the peculiarities of the political and territorial structure of Switzerland, we note that, despite the preservation of the historical name - the "Swiss Confederation", Switzerland has been a federal state since 1848, having a national parliament — the Federal Assembly, the central government — the Federal Council, etc. At the same time, the Swiss cantons are de jure members of the Swiss Confederation, de facto subjects of the Swiss federation, are also considered states, although with limited sovereignty. In a similar capacity, they are recognized not only in their own constitutions, but also in the Swiss Constitution as a whole: "The Republic of Geneva is a democratic state <...> It is one of the sovereign cantons of the Swiss Confederation and exercises all the competence that the Federal Constitution did not grant to the latter" – Article 1 "The Republic and the Canton of Geneva" of the Constitution of the Republic and the canton of Geneva 2012 (Constitution de la R?publique et canton de Gen?ve du 14 octobre 2012. Derni?res modifications au 23 mars 2024. [Electronic resource] — Access mode: <https://www.lexfind.ch/tolv/238720/fr > (date of appeal: 05/19/2024)); "The cantons are sovereign, since their sovereignty is not limited by the Federal Constitution, and exercise all rights that are not delegated to the Confederation" — Article 3 "Cantons" of the Federal Constitution of the Swiss Confederation of 1999 (Constitution f?d?rale de la Conf?d?ration suisse du 18 avril 1999 (?tat le 1er janvier 2024). [Electronic resource] — Access mode: <https://www.fedlex.admin.ch/eli/cc/1999/404/fr > (date of application: 05/19/2024)).

It is noteworthy that the Swiss canton, which is the most outward—looking to the foreign world, has become a pioneer in the constitutional consolidation of the right to digital inviolability, which (or rather, whose capital is Geneva) acts as the main global platform for international negotiations, the headquarters of international organizations, including the European headquarters of the United Nations, and a significant part of permanent and temporary residents which is made up of foreigners ^{[10, p. 9]}.

It is also significant that under the heading "the right to digital inviolability" (in the singular), Article 21A of the Geneva Constitution, which enshrines it (see epigraph), places a whole set (complex) of individual rights in the digital environment. There is one common one among them: "the right to protection of digital integrity" (paragraph 1 of Article 21A) and four special ones concerning certain aspects of a person's digital life — each with a special name, and therefore semantic content (paragraph 2 of Article 21A): "the right to protection from unlawful processing of data related to one's digital life", "the right to security in the digital space", "the right to live offline", "the right to be forgotten" (the latter right, otherwise called the "right to be forgotten" or, more correctly, the "right to delete information", implies the ability of a person to demand the deletion of information about him that has been posted on the Internet; first recognized in 2014 in the judicial practice of the supranational body of justice of the EU ^[11], of which Switzerland has never been and does not plan to be a part, today it is enshrined in the legislation of various countries, including Russia ^{[12, p. 1]}; in the Swiss canton of Geneva, as can be seen, the right to oblivion has now been transferred to the category of the main one).

It is also noteworthy that the list of rights-elements, which together form a comprehensive right to digital privacy, is open (non-exhaustive). This is indicated by the introductory provisions of paragraph 2 of Article 21A of the Geneva Constitution ("digital inviolability includes, in particular"). Consequently, through the interpretation of Article 21A "The right to digital inviolability" by judicial practice, other basic human rights in the digital environment can be derived from it, recognition of which in this capacity will be required in the course of further development of digitalization of public life.

In addition to the rights in paragraphs 3 and 4 of Article 21A of the Geneva Constitution, we find digital duties of the state, which, thanks to constitutional consolidation, also receive a fundamental character here, namely:

the obligation, both negative (prohibition) and positive (taking protective measures), not to transfer or allow others to transfer personal data abroad unless they are adequately protected from improper use, including accidental or intentional leakage to third parties;

the obligation of a programmatic nature to create favorable conditions for universal involvement in the digital environment (another translation option: for "digital inclusivity" — French inclusion num?rique);

It is also a programmatic responsibility (task) that goes beyond the protection of human rights and relates to ensuring "digital sovereignty", and Switzerland as a whole (digital sovereignty is another new concept that penetrates the political and legal lexicon of modern states, including Russia ^[13]; digital sovereignty is appropriate to consider in the context of technological sovereignty, which together with economic, energy and other "sectoral sovereignties" forms the foundation of the real independence and independence of the state, i.e. sovereignty not only de jure, in name, but also de facto ^{[14, pp. 6-43]}).

Is the constitutional novel of Geneva capable, which received an almost unanimous start in life there (at the referendum on June 18, 2023 on the inclusion of Article 21A "The right to digital inviolability" in the Geneva Constitution, 94.21% of the citizens who voted approved it (Administration num?rique suisse. Apr?s le vote de Gen?ve: ce que signifie le droit ? l'int?grit? num?rique. [Electronic resource] — Access mode: <https://www.administration-numerique-suisse.ch/fr/blog/10-was-bedeutet-das-recht-auf-digitale-unversehrtheit#:~:text=Le%2018%20juin%202023%2C%20le,de%20pionnier%20%C3%A0%20cet%20%C3%A9gard> (date of circulation: 05/19/2024)), finally tip the scales in Switzerland and abroad in favor of special consolidation in the constitutions of digital or, more broadly, technological rights as a new generation of fundamental human and civil rights and freedoms — namely, fundamental rights that enjoy the same priority and the same increased protection as the right to life, personal integrity (in physical and mental terms), etc.? Today, not only different opinions are expressed on this issue, but diametrically opposed opinions. Let's try to summarize the main arguments pro et contra (Latin for and against), starting with the latter.

The right to digital privacy: arguments "against" (contra)

1. Practical uselessness. Not only constitutional provisions that enshrine the fundamental rights and freedoms of man and citizen, but also any other legal norms (i.e. abstract rules of conduct) in general, Swiss lawyers point out, are "technologically neutral" and as such have an "impressive adaptive ability" to adapt their content to any social changes, including the emergence of new ones technologies ^{[15, p. 6]}.

In the case of fundamental human and civil rights and freedoms, judicial practice traditionally acts as an instrument of such adaptation — the legal positions of judicial (in some states, for example, in France, quasi-judicial) constitutional control bodies, which, through the interpretation of constitutional texts, form a "living" constitution on their basis (the statement of one of the members of the US Supreme Court is widely known: "We are subject to the constitution, but the constitution is what the judges will say about it" ^{[16, p. 259]}). In Switzerland, at the national level, a living constitution is created by the Federal Court, the highest judicial instance of the country; at the cantonal level, their own judicial authorities do the same, in particular, in the Canton of Geneva — the Court of the Republic and the Canton of Geneva, one of the structural divisions of which is the Constitutional Chamber (Articles 1, 130 A and 130 B of the Law "On the judicial organization" 2010 as amended in 2024 (Loi sur l'organisation judiciaire du 26 septembre 2010. Derni?res modifications au 26 janvier 2024. [Electronic resource] — Access mode: <https://www.lexfind.ch/fe/fr/tol/31050/fr > (date of application: 05/19/2024)).

In the Swiss legal doctrine, the basic rights formulated in judicial practice are qualified as "unwritten rights" (French: droits non-?crits), i.e. those that, although not directly enshrined (not recorded) in constitutional texts, derive from them, and therefore have the highest legal force with them ^{[17, pp. 440-442]}.

An example of unwritten rights in the digital space is related to the collection and processing of personal data (which today are produced mainly by computer means!) the right to "informational self-determination" (French: autod?termination informationnelle; German: informationelle Selbstbestimmung). It was first mentioned in Federal Court decisions back in the late 1980s, and today it is derived from paragraph 2 of Article 13 "Protection of the private sphere" of the Federal Constitution of the Swiss Confederation of 1999, according to which: "Everyone has the right to protection from misuse of data related to him" ^[18].

The right to information self—determination is characterized in the writings of Swiss lawyers as "the right not to consent to the processing of [personal data - Author], which does not correspond to the will" of the person concerned ^{[19, pp. 31-32]}; according to a more accurate description contained in the latest judicial practice of the Federal Court (paragraph 7.2 of the decision of July 13, 2020 (Tribunal f?d?ral. 2C_376/2019. Arr?t du 13 juillet 2020. IIe Cour de droit public. [Electronic resource] — Access mode: <https://www.bger.ch/ext/eurospider/live/de/php/aza/http/index.php?highlight_docid=aza%3A%2F%2F13-07-2020-2C_376-2019&lang=de&type=show_document&zoom=YES& > (date of appeal: 05/19/2024)), it represents the right of people to "object to the transfer of data related to them without a legal basis, i.e. in contradiction with the law" (as can be seen, in the last formulation there is a reservation in the case when the transfer data is legalized by the legislator in addition to the will of the person for socially useful purposes, for example, related to law enforcement activities).

"It is possible," Swiss lawyers add, "that "the Federal Court will further recognize new unwritten rights through a more or less broad interpretation of the guarantees already contained in the Federal Constitution [of the Swiss Confederation of 1999]" ^{[19, p. 29]}.

The willingness to creatively adapt — in fact, supplement (add) — the catalog of fundamental human and civil rights and freedoms contained in the constitutions, taking into account new technological realities, is shown by the constitutional control bodies of other countries. For example, the Federal Constitutional Court of Germany, even earlier than in Switzerland (in 1983), deduced from the German Constitution (Basic Law of 1949) the right to information self—determination, then (in 2008) - "the basic right to confidentiality and inviolability of technical/information systems" ^{[20, p. 60]}, and in the Central American state of Costa Rica in 2010 The Constitutional Chamber of the Supreme Court recognized the refusal for technical reasons to provide public services for broadband Internet access as a violation of fundamental rights to communication and information ^{[21, p. 33]}

The technologically neutral nature of fundamental rights is vividly demonstrated by the practice of the Constitutional Council of the French Republic (the quasi-judicial body of constitutional control of France). In 2009, the Constitutional Council introduced into the system of fundamental rights of French citizens and other persons located on French territory the "right to access the Internet", otherwise called "freedom of access to the Internet" (both formulations are used synonymously in French legal doctrine ^{[22; 23, p. 21]}.

According to the Constitutional Council, the right to access the Internet/freedom of access to the Internet stems from the 1789 Declaration of Human and Civil Rights, which has constitutional (supreme legal) force in France, the authors of which could hardly have foreseen the emergence of the global information and communication network "Internet" two centuries later.

Nevertheless, as the Constitutional Council decided, "according to article 11 of the Declaration of Human and Civil Rights of 1789 “The free communication of thoughts and opinions to others is one of the most precious human rights; therefore, every citizen can freely speak, write, print, bearing responsibility for the abuse of this freedom in cases established by law” <...> in the current state of the means of communication and taking into account the universal dissemination of communication services to the public online, as well as Given the importance that these services have acquired for participation in democratic life and for the expression of ideas and opinions, this right implies freedom of access to these services" (paragraph 12 of the resolution of the Constitutional Council of June 10, 2009 (Conseil constitutionnel. D?cision n° 2009-580 DC du 10 juin 2009 (Loi favorisant la diffusion et la protection de la cr?ation sur Internet). [Electronic resource] — Access mode: <https://www.conseil-constitutionnel.fr/sites/default/files/as/root/bank_mm/decisions/2009580dc/2009580dc.pdf > (date of application: 05/19/2024)).

So, the technological neutrality of fundamental rights, coupled with their potential to "overgrow" other rights due to a living constitution developed by constitutional control bodies, makes their separate constitutional consolidation unnecessary for the field of digital and other technologies. This argument was the first reason for the refusal of the Swiss federal authorities, following the example of the Canton of Geneva, to introduce the right to digital inviolability into the national constitution, thereby extending it to the entire territory of the country (a constitutional amendment initiated in 2022 by one of the deputies of the Swiss Parliament planned to supplement paragraph 2 of Article 10 "The right to life and personal freedom" of the Swiss Federal Constitution The Confederation of 1999 by the following provision in italics: "Everyone has the right to personal freedom, in particular the right to physical, mental and digital integrity and freedom of movement" (Initiative parlementaire 22.479 — Introduire dans la Constitution le droit ? l'int?grit? num?rique. D?pos? par: Bendahan S. Groupe socialiste — Parti socialiste suisse. Date de d?p?t: 29.09.2022. D?pos? au: Conseil national. Etat des d?lib?rations: Liquid?. [Electronic resource] — Access mode: <https://www.parlament.ch/fr/ratsbetrieb/suche-curia-vista/geschaeft ?AffairId=20220479#:~:text=L'article%2010%20al.,%C3%A0%20la%20libert%C3%A9%20de%20mouvement> (accessed: 05/19/2024)). As noted in the negative review of the relevant commission of the Swiss Parliament:

"The basic rights currently guaranteed by the Federal Constitution [of the Swiss Confederation of 1999 — Ed.] are sufficient to protect citizens and citizens in the digital world. Particularly relevant in this regard are the rights to personal freedom (Article 10 of the Constitution) and to the protection of the private sphere (Article 13 of the Constitution). This also includes the right of every person “to be protected from the misuse of data related to him” (paragraph 2 of Article 13 of the Constitution), from which the Federal Court derived the “right to information self—determination” - a right that provides an individual with some form of control over his own personal data <...> In addition, the proclamation of a new fundamental right it risks giving citizens and citizens the illusion of security, whereas the real danger to their freedoms comes from manifestations of cybercrime that are difficult to control, such as the darknet" (Conseil national. Rapport de la Commission des institutions politiques du 9 novembre 2023 — 22.479. Iv. pa. Bendahan. Introduire dans la Constitution le droit ? l'int?grit? num?rique. [Electronic resource] — Access mode: <https://www.parlament.ch/centers/kb/Documents/2022/Rapport_de_la_commission_CIP-N_22.479_2023-11-09.pdf > (date of application: 05/19/2024)).

2. Unclear legal content with elements of duplication. What does "digital privacy" mean and what is the "right" to it?

On the one hand, the new article of the Constitution of the Republic and Canton of Geneva 2012 entitled "The right to digital inviolability" (Article 21A), as shown above, uses this concept in a collective sense — as a kind of rubric, under which five important (one general and four special) individual rights in the digital environment are brought together. by adding the fundamental digital responsibilities of the state.

On the other hand, as we have just seen by the example of the rejected amendment aimed at including the right of the same name in the Federal Constitution of the Swiss Confederation in 1999, its author proposed to fix there the right to digital inviolability in a named format, i.e. in the form of a simple mention ("Everyone has the right to <...> digital inviolability") leaving the issue of disclosure of its legal content for current legislation and judicial practice.

Projects for the constitutional consolidation of the right to digital privacy were also presented in a number of other Swiss subjects of the federation ^{[24, p. 2; 25]} — and in each in its own way! An illustration is Article 30 "Digital inviolability and digital identity", which should have been contained in the new constitution of the canton of Vallis, approved by its authorities in 2023, but rejected by its citizens in a referendum on March 3, 2024 (unlike the canton of Geneva, it was about the adoption of a new cantonal constitution as a whole, and the reasons the deviations of the document were of a more extensive nature, not reducible to the planned consolidation of basic digital rights there (Le Valais rejette la r?vision de sa Constitution // RTS. 05.05. 2024. [Electronic resource] — Access mode: <https://www.rts.ch/info/regions/valais/2024/article/le-valais-rejette-la-revision-de-sa-constitution-28424493.html > (accessed: 05/19/2024); "Compromis" ou "fourre-tout", le projet de nouvelle Constitution divise le Valais // RTS. 03.03.2024. [Electronic resource] — Access mode: <https://www.rts.ch/info/regions/valais/14644891-compromis-ou-fourretout-le-projet-de-nouvelle-constitution-divise-le-valais.html > (date of appeal: 05/19/2024)). If the new constitution of the Canton of Vallis had been adopted, then the mentioned article would have looked like this:

"1. Everyone has the right to their digital integrity, in particular, to their ability to freely interact with others through digital technologies.

2. Everyone has the right to open and non-discriminatory access to the Internet.

3. Everyone has the right to control and use their digital identity, in particular for identification and access to services" (Projet de Constitution du Canton du Valais. [Electronic resource] — Access mode: <https://constitution-oui.ch/projet-de-constitution-du-canton-du-valais /> (date of access: 05/19/2024)).

In the canton of Fribourg, digital inviolability is mentioned in one of its most important constitutional legal acts (although it does not have the highest legal force, since it is a source of current legislation) - the Law "On the Exercise of Political Rights" of 2001, as amended in 2024 (Loi sur l'exercice des droits politiques du 06.04.2001 (version entr?e en vigueur le 01.01.2024). [Electronic resource] — Access mode: <https://www.lexfind.ch/fe/fr/tol/5528/fr > (date of application: (05/19/2024)). According to its Article 19a "Electronic voting", when conducting elections and referendums electronically, the authorities of the canton must ensure compliance with a number of imperative conditions, including the condition of "respect for digital integrity", the meaning of which, as in the failed amendment to the Federal Constitution of the Swiss Confederation of 1999, is not deciphered.  

It turns out that even in one, albeit federal, state, the law with the same name has far from identical legal content (or does not receive any legal content when fixed), depending on the territorial jurisdiction where it operates or is planned to be introduced. This means that this right is still "raw" (= unfinished, insufficiently thought out, etc.) and clearly falls short of classical (non-digital) fundamental rights, which may differ in nuances in different countries and legal systems, but everywhere have approximately the same, well-established meaning.

Going beyond Switzerland, we note that domestic experts called other components of the "right to privacy in the digital environment" (in this wording — Author), in particular, "the right to privacy", "the right to anonymity" or "the right to confidentiality"; at the same time, it was stated that: "The right to privacy in the digital environment covers a huge variety of different aspects of human life, which cannot be exhaustively defined" ^{[25, p. 176]}.

The separate consolidation of digital rights in the constitutions, which are hidden under the heading "the right to digital inviolability", also raises the problem of their intersection with other fundamental human and civil rights and freedoms. The Geneva Constitution initially guaranteed everyone the "right to protection from the misuse of data related to them" (paragraph 2 of Article 21 "Protection of the private sphere"). This rule remains in force today. Why should the Constitution also include the "right to protection from unlawful processing of data related to one's digital life" (one of the special rights listed in paragraph 2 of Article 21A "The right to digital inviolability"), in fact repeating what already exists, only in a narrower (digital) context?

The intersection (duplication) of legal provisions can hardly be considered an indicator of high legal technique and, in any case, cannot but cause problems in law enforcement, which was also noticed by the relevant commission of the Swiss Parliament in a negative review of the draft constitutional amendment on the inclusion of the right to digital inviolability in the Federal Constitution of the Swiss Confederation in 1999, to which we let's turn further.

3. The artificial nature of the digital personality. Recently, including in legal terms, the question has been raised about the appearance of a person, along with an ordinary digital personality, "which is characterized by a set of encoded information about a particular person (personal data, individual needs, performance results, relationships, biography, personal characteristics and habits), which has the properties of transferability in virtual space and processing by artificial intelligence" and "includes three main elements: a digital profile, a digital image and a digital footprint" ^{[26, p. 20]}.

However, if we assume that a digital personality exists, then any violation of its inviolability, which also takes place in a digital (virtual) environment, still falls on the living person standing behind it, causing the latter physical and mental suffering ("headache" in the literal and figurative sense). In other words, Swiss lawyers note, "even if an encroachment on digital privacy occurs in the digital space, since it affects the existence of a person on the Internet, the damage is felt only physically and (or) mentally by the person himself," which means that the right to digital privacy is nothing more than "the continuation of the right to physical or mental inviolability" ^{[27, p. 159]}.

Why protect the mythical inviolability of a pseudo-entity that is inseparable from a real person, again introducing elements of duplication into the system of fundamental rights: after all, the right to inviolability is already contained in constitutional texts? This argument was another reason for rejecting the deputy's initiative to include the right to digital privacy in the Federal Constitution of the Swiss Confederation in 1999. As indicated in the negative review of the relevant commission of the Swiss Parliament:

"By protecting the physical and mental integrity of individuals, fundamental rights equally extend to what is called 'digital privacy.' Indeed, the latter does not have its own existence (or space) outside these other two dimensions, just as there can be no “digital personality” in addition to really tangible physical and mental personalities <...> Taking measures at the constitutional level by introducing a new fundamental right, therefore, would have a more symbolic, rather than practical in nature. It is not a good legal policy to consolidate fundamental rights that have only a symbolic scope of application."

Having written the "right to digital inviolability" into their own Constitution, the authorities and citizens of the Canton of Geneva did not listen to this advice, giving rise to a rather strange doubling or even tripling of human inviolability in its text:

on the one hand, the "right to inviolability", as such, proclaimed together with the right to life and subject to protection in mental, i.e. spiritual, and physical, i.e. bodily dimensions (according to Article 18 "Right to life and inviolability" of the Constitution of the Republic and Canton of Geneva 2012, everyone has the "right the right to protect life and one's physical and mental integrity", guaranteed by the prohibition of torture, other cruel, inhuman or degrading treatment or punishment provided for there and the prohibition to expel a person to the territory of other States where he may be subjected to such treatment, punishment or "any other serious encroachment on his inviolability");

on the other hand, the "right to digital inviolability" (new Article 21A "The right to digital inviolability"), the elements of which were described above.

It is also surprising that ordinary (mental and physical) and digital inviolability in the Geneva Constitution are spatially and logically divorced from each other: the second does not follow, as one might expect, directly after the first, but is separated from it by other basic rights: the right to a healthy environment (Article 19); the right to personal freedom, security, and freedom of movement (Article 20); the right to protection of the private sphere (Article 21).

The right to digital privacy: arguments for (pro)

1. Reflection of the new realities arising from digitalization (digital transformation, digital revolution, etc.). Digitalization is not just another technological stage in the development of mankind, but a qualitative leap that changes the way of life and thoughts of people. Human work and leisure activities, mostly (and for some people entirely) now take place "on the computer" or "in a smartphone", "on the Internet", "on social networks", etc. Intelligent man (homo sapiens) is increasingly computerized and digitized, turning into a "digital man" (homo digitalis) ^{[28, p. 3]}.

A person is changing, and the law must change, including its root source — the constitution! It is wrong for the constitution to remain aloof from the drastic technical, social and value changes that digital tools bring to our lives. As for the legal imperfection of the right to digital privacy, this is a transient phenomenon (as the proverb says, "the first pancake is a lump"). Formulations can be further refined, duplication and logical inconsistencies can be smoothed out or eliminated.

The main thing is to ensure that people and society are protected in a new and unexplored — promising advantages and, at the same time, threatening dangers — digital environment, just as the state is trying (should try!) to protect the well-being of people in the ordinary (non-virtual) world. If the key parameters of digital protection are constitutionally prescribed in the form of fundamental rights enjoying the highest legal force, as the Swiss canton of Geneva did, then such initiatives should only be welcomed.

It is worth noting here that the previously repeatedly cited negative review by the relevant commission of the Swiss Parliament on the initiative to include the right to digital privacy in the Federal Constitution of the Swiss Confederation in 1999 was approved by an extremely small majority: 13 "against", 11 "for". It turns out that the opinions of the commission members were divided almost equally with only a minimal margin among conservative-minded deputies. After hearing the arguments of the latter, it is necessary to give the floor to those parliamentarians who supported the constitutional consolidation of the right to digital privacy throughout Switzerland:

"Social changes should also be reflected in the development of the catalog of fundamental rights...> Even if the contours of the new fundamental right [to digital inviolability — Author] are still blurred, its proclamation at the constitutional level could only contribute to the positive development of legal regulation" (Conseil national. Rapport de la Commission des institutions politiques du 9 novembre 2023 — 22.479. Iv. pa. Bendahan. Introduire dans la Constitution le droit ? l'int?grit? num?rique. [Electronic resource] — Access mode: <https://www.parlament.ch/centers/kb/Documents/2022/Rapport_de_la_commission_CIP-N_22.479_2023-11-09.pdf > (date of application: 05/19/2024)).

2. Digital constitutionalism as an international phenomenon ^[29-30]. Switzerland is not the only country where attempts have been made in recent years to reflect the digital realities of modern society in constitutional texts: both within the framework of the institute of fundamental human and civil rights and freedoms, and with the help of other fundamental legal principles.

For example, in Belgium, the Federal Mediator (Commissioner for Human Rights) took the initiative to include the right to access the Internet in the constitution in 2021, according to whom, due to the importance of the Internet in the daily lives of all people, this right deserves to become the main one (L'institut international de l'ombudsman. Belgique: Recommandation pour inscrire un droit d’acc?s ? internet dans la Constitution. 23.07.2021. [Electronic resource] — Access mode: <https://www.theioi.org/ioi-news/current-news/recommandation-pour-inscrire-un-droit-d-acces-a-internet-dans-la-constitution > (date of application: 05/19/2024)).

 In France, despite the recognition by the Constitutional Council in 2009 of the right to access the Internet/freedom of access to the Internet as a fundamental human right stemming from the Declaration of Human and Civil Rights of 1789 (see above), some parliamentarians still proposed to write it into the first article of the Constitution — directly and in a more detailed form: "The law guarantees free, equal and universal access to digital networks and training of citizens in their use" (proposal of the Constitutional Law "In support of a new Civic and Participatory Democracy" of November 10, 2021) (Proposition de loi constitutionnelle pour une nouvelle d?mocratie citoyenne et participative. N° 4661. Assembl?e nationale. Enregistr? ? la Pr?sidence de l’Assembl?e nationale le 10 novembre 2021. [Electronic resource] — Access mode: <https://www.assemblee-nationale .fr/dyn/15/textes/l15b4661_proposition-loi.pdf> (accessed 05/19/2024)).

Taking into account the prospects for the development of artificial intelligence technologies, there was also a proposal to supplement the national constitution in a broad sense (the Constitution of the French Republic of 1958 plus sources equated to it, such as the Declaration of Human and Civil Rights of 1789 or the Charter of the Environment of 2004) with another act of the highest legal force — the Charter of Artificial Intelligence and Algorithms (proposal The Constitutional Law "On the Charter of Artificial Intelligence and Algorithms" dated January 15, 2020) (Proposition de loi constitutionnelle relative ? la Charte de l'intelligence artificielle et des algorithms. N° 2585. Assembl?e nationale. Enregistr? ? la Pr?sidence de l’Assembl?e nationale le 15 janvier 2020. [Electronic resource] — Access mode: <https://www.assemblee-nationale .fr/dyn/15/textes/l15b2585_proposition-loi.pdf> (accessed: 05/19/2024)).

Among the constitutional acts prepared in recent years, the most digitalized, if adopted, could be the Constitution of Chile, especially the first version of its draft 2022 (as well as the subsequent version of 2023, the draft was rejected by Chilean citizens in a referendum). If the document had entered into force, then in this South American state such basic digital rights of the human person and fundamental digital duties of the state as the right of every person to the accessibility of "digital connections and information and communication technologies" and to "digital education" would have been directly consolidated and supreme legal force; the right of workers to "digital disconnection" (Spanish: desconexi?n digital), i.e. to disconnect from digital services without the threat of disciplinary action by the employer; the duty of parliament to legislate "digital tools" for involving citizens in government; the duty of local governments to develop "digital literacy", etc. (Propuesta — Constitui?n Pol?tica de la Rep?blica de Chile. 2022. [Electronic resource] — Access mode: <https://labconstitucional.udp.cl/documentos/propuesta-nueva-constitucion-2022 /> (date of access: 05/19/2024)).

In a number of countries belonging to different political and legal traditions and located on different continents, the basic rights of the human person and the fundamental rules of state activity in the digital environment have already been introduced into the constitution, i.e. they are the reality of today.

Thus, the Constitution of Georgia of 1995 proclaims from 2018 the "right to access the Internet and freedom to use the Internet" (paragraph 4 of Article 17 "Right to freedom of opinion, information, mass media and the Internet") (Constitution of Georgia — Legislative Bulletin of Georgia. [Electronic resource] — Access mode: <https://matsne.gov.ge/ru/document/view/30346 ,?publication=36> (date of issue: 05/19/2024)).

The Egyptian Constitution of 2015, in the context of freedom of the press and other media, grants every citizen and every legal entity of the country the right to own and produce "digital information resources" (Article 70), and also provides for the obligation of the authorities to take measures to eliminate "digital illiteracy" among citizens of all ages (Article 25) (The Egyptian Constitution — Supreme Standing Committee for Human Rights. [Electronic resource] — Access mode: <https://sschr.gov.eg/en/the-egyptian-constitution /> (date of access: 05/19/2024)).

The State's obligation to eliminate digital illiteracy is also fixed in the Constitution of Ecuador of 2008 (Article 347) (Constituci?n de la Rep?blica del Ecuador Actualizado a: martes, 7 de mayo de 2024. [Electronic resource] — Access mode: <https://www.lexis.com.ec/biblioteca/constitucion-republica-ecuador > (date of application: 05/19/2024)).

Updated following the results of the 2018 referendum, the Constitution of the Union of the Comoros of 2001 (an island state in the Indian Ocean geographically belonging to Africa) in the chapter on fundamental rights (Article 27) provides for the protection of "individual computerized data" by law (French donn?es informatiques individuelles) (Projet de r?vision de la Constitution de l'Union des Comores du 23 d?cembre 2001, r?vis?e en 2009 et en 2013. [Electronic resource] — Access mode: <https://cdn.accf-francophonie.org/2019/03/comores-consitution-2018.pdf > (date of application: 05/19/2024)).

Another island state, this time in the Caribbean Sea (South and Central America) — the Dominican Republic, in the Constitution of 2015 (paragraph 3 of Article 44) enshrines the inviolability of private correspondence, private documents and communications with a special indication that such inviolability must be respected not only physically, but also in "digital, electronic and any other format" (Constituci?n De La Rep?blica Dominicana. [Electronic resource] — Access mode: <https://republica-dominicana.justia.com/nacionales/constitucion-de-la-republica-dominicana/titulo-ii/capitulo-i/seccion-i/ > (date of application: 05/19/2024)).

Since 2008, the Greek Constitution of 1975 has elevated to the category of the fundamental duty of the state "facilitating access to information transmitted electronically, as well as its production, exchange and dissemination" (Article 5A), and the Constitution of Portugal of 1976 (also as amended in 2008) in Article 35 "The use of information technologies" guarantees everyone "free access to public information networks", which is essentially synonymous with the constitutional consolidation of the right to access the Internet ^{[21, pp. 31-34]}.

In federal or regionalist (decentralized) unitary states, issues of digital resources and communications management may also be included in the constitutional lists of subjects of competence and powers of different levels of public authority. Usually, constitutional acts refer such issues to the national competence:

Internet services as an issue whose regulation is reserved to the central authorities of the United Kingdom (paragraph 29 of Appendix 3 "Reserved Matters" to the Northern Ireland Act 1998 as an integral part of the British Uncodified Constitution) (Northern Ireland Act 1998. [Electronic resource] — Access mode: <https://www.legislation.gov.uk/ukpga/1998/47/data.pdf > (date of application: 05/19/2024));

e-mail, Internet and Intranet as objects of legal regulation of the Union (national) legislation of Myanmar (paragraph "m" of Appendix 1 "Legislative List of the Union" of the Constitution of the Republic of the Union of Myanmar 2008 as amended in 2015) (Constitution of the Republic of the Union of Myanmar. [Electronic resource] — Access mode: <https://www.constituteproject.org/constitution/Myanmar_2015 > (date of application: 05/19/2024));

The publication of laws on information and communication technologies and the Internet as the authority of the Federal Parliament of Mexico (paragraph XVII of Article 73 of the Political Constitution of the United Mexican States of 1917, as amended in 2021) (Constituti?n Pol?tica De Los Estados Unidos Mexicanos. Constituci?n publicada en el Diario Oficial de la Federaci?n el 5 de febrero de 1917. ?ltima reforma publicada 28-05-2021. [Electronic resource] — Access mode: <https://www.gob.mx/cms/uploads/attachment/file/646405/CPEUM_28-05-21.pdf > (date of application: 05/19/2024)). The current version of the Mexican Constitution also provides for fundamental digital responsibilities imposed on the State as a whole or on its authorized bodies, for example, the obligation to pursue a "policy to ensure the involvement of all in the digital environment" (paragraphs B-I of Article 60) or legislatively develop transparency of government activities based on the "principles of digital government and open data" (clause IX of Article 28).

Since the Internet acts as a global information and communication network, and digital communications, like no other, penetrate state borders, the phenomenon of digital constitutionalism is widely reflected in the activities of international intergovernmental, non-governmental organizations and international integration associations.

So far, we are talking about policy acts that are rather political in nature, such as the UN General Assembly Resolution "The right to privacy in the Digital Age" of 2013 (Resolution adopted by the General Assembly on December 18, 2013 (No. 68/117). [Electronic resource] — Access mode: <https://documents.un.org/doc/undoc/gen/n13/449/49/pdf/n1344949.pdf?token=bOkVXljJE4wu2YiE0z&fe=true > (accessed: 05/19/2024)), the African Declaration on Internet Rights and Freedoms 2013 (African Declaration on Internet Rights and Principles. [Electronic resource] — Access mode: <https://africaninternetrights.org/sites/default/files/African-Declaration-English-FINAL.pdf > (date of reference: 05/19/2024)) or the European Declaration on Digital Rights and Principles in the Digital Decade 2022 adopted within the EU (D?claration europ?enne sur les droits et principes num?riques pour la d?cennie num?rique // Journal officiel de l'Union europ?enne C du 11/23/2023. — P. 1-7). Due to the lack of binding force, the significance of these acts remains limited, and the legal elaboration of their provisions leaves much to be desired (European experts, in particular, drew attention to these circumstances critically in relation to the last document ^[31]).

Skeptics, however, should be reminded that the formation of international human rights law for classical — non—digital — fundamental rights also began with a good wish - the Universal Declaration of Human Rights in 1948, which gave impetus to the preparation of legally binding documents on individual continents and around the globe (the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 The United Nations International Covenants on Civil and Political, Economic, Social and Cultural Rights of 1966, the African Charter on Human and Peoples' Rights of 1981, the Convention of the Commonwealth of Independent States on Human Rights and Fundamental Freedoms of 1995, etc.).

Probably, in a similar scenario, the joint movement of states towards digital constitutionalism will later be expressed in the inclusion of the right to digital integrity and other fundamental rights in the digital environment in the above-mentioned international bills of rights, and perhaps in the preparation of separate conventions on digital rights, just as it has already happened in the case of rights that protect a person from the application of scientific and technological achievements of a biomedical nature to it, including manipulation of the genetic code (Convention for the Protection of Human Rights and Dignity in Connection with the Application of Advances in Biology and Medicine, briefly the "Convention on Human Rights and Biomedicine", adopted within the framework of the Council of Europe in 1997 (Series of European treaties — No. 164. [Electronic resource] — Access mode: <https://rm.coe.int/168007d004 > (date of application: 05/19/2024)).

3. Practical usefulness. Even if we agree with the opinion of the majority of members of the relevant commission of the Swiss Parliament that digital inviolability is indirectly already protected by other articles of the Federal Constitution of the Swiss Confederation of 1999. In their interpretation, the judicial practice of the Federal Court as the highest body of constitutional control of the country, that the inclusion of a special right to it will lead to duplication with other constitutional provisions and will have only a symbolic character due to the lack of such a hypothetical digital personality, these arguments do not deprive the step taken by the Swiss canton of Geneva of practical meaning.

Firstly, the direct consolidation of the right to digital inviolability in a separate article of the Geneva Constitution (recall that under this name there is actually a set of basic human rights in the digital environment, as well as the fundamental digital duties of the state), will make the right to digital inviolability much more well-known and understandable to the widest possible range of citizens than when it The elements need to be extracted from the disparate and complicated legal language of the acts of current legislation and court decisions, the meaning of which can only be adequately perceived by a person with legal training.

Secondly, fundamental rights, since they are contained in the Constitution as the constituent act of the State, the core of its legal system and the source of supreme legal force, are more than rights. This is a vector, a beacon, a landmark that defines the main directions and priorities of the work of the entire state mechanism. The constitutional consolidation of the right to digital inviolability and other digital rights, hence, will clearly and unambiguously indicate to all public authorities and officials the need for increased attention to them, including the need to constantly improve tools to counter cybercrime and other human encroachments in the digital space.

In other words, it will no longer be so easy for those in power to "get away" from solving the problems caused by digitalization: after all, the existence of the basic (constitutional) right to digital inviolability generates for them a corresponding obligation to take measures to promote and protect it. At the same time, the risk of weakening guarantees from judicial practice is removed: again, because now we are no longer talking about "unwritten law" (in Swiss terminology), deduced by the courts through the interpretation of constitutional norms, but about a constitutional norm in the literal sense of the word, which the judicial authorities, like other branches of government, must ensure comprehensive and consistent application.

In the response of the relevant commission of the Swiss Parliament on the inclusion of the right to digital immunity in the Federal Constitution of the Swiss Confederation in 1999, these arguments "for" were formulated by the deputies who supported this step as follows (once again, we recall that the parliamentary commission on this issue was divided almost in half, so that opponents of the constitutionalization of the right to digital immunity only slightly outnumbered her supporters: 13 "no", 11 "yes"):

"The inclusion of a special fundamental right dedicated to digital inviolability would fill in the gaps identified in the protection of people [in the digital environment — Author] and send a clear signal to the courts regarding the will of the legislator [meaning the will of parliament as the body adopting the Constitution, followed by its confirmation in a referendum — Author]."

Finally, in at least one aspect, the right to digital inviolability, as it was enshrined in Article 21A of the Constitution of the Republic and the Canton of Geneva in 2023, contains, in economic terms, elements of added value, i.e. makes a truly new contribution to the development of the institution of fundamental human rights and freedoms and a citizen, without duplicating the provisions previously enshrined in the constitutions.

We are talking about a special right fixed in paragraph 2 of Article 21A of the Geneva Constitution, which is one of the elements in the content of the complex right to digital privacy, which has been named "the right to life offline" (another translation: "the right to life offline" — French droit ? une vie hors ligne). The widespread spread of digital technologies should not lead to the transformation of a person from an independently thinking and acting being into an appendage of an electronic computing machine, and the prevention of digital slavery is as urgent a task as digitalization, which all states should take care of: the sooner the better. "The humanocentrism of law is evolving towards technocentrism, without losing the priority of the human in relation to technical and material objects" ^{[1, p.12]}.

Conclusion

There are no ideal solutions in the management of society. Comparing the positive and negative consequences of different options for action, measuring their pros and cons, and eventually selecting those that will give the maximum positive effect (or, taking into account the situation, will serve as the least evil) is not an easy task, because the ability to foresee the future, despite all the resources of digital technologies, including artificial intelligence, remains and, obviously, it will always remain limited.

Hence the general conclusion, which may seem unexpected. If the arguments for (pro) and against (contra) managerial, including regulatory, measures roughly balance each other (in the case of the right to digital privacy, the reader is invited to independently determine for himself which side is closer to the truth and whose arguments look more convincing), then the only way to really figure out who whoever is right is wrong — to conduct a test, an experiment.

Federalism provides an opportunity for this kind of experimentation on a limited scale, which allows, in the context of decentralization of the country's political and legal system, to test innovative solutions at the level of its individual parts (subjects of the federation), in order to then reproduce similar solutions (if possible: in an improved form) in other parts of it or at the national level, and in the case of a fiasco — not putting society as a whole at risk.

As foreign experience shows, the subjects of the federation are able to assume the role of a locomotive and a legal testing ground, including for testing new types of fundamental human and civil rights and freedoms. For example, although in the United States the federal Constitution, adopted at the end of the XVIII century (in 1787; the first ten amendments to the Constitution, which contain the national bill of rights, were prepared in 1789), does not even contain a hint of securing environmental rights, which became relevant only in the second half of the XX century, these rights in XXI century. included in the constitutional bills of some American states, including the one where the country's largest city is located — New York (approved by a referendum of its citizens in 2021, the new § 19 "Environmental Rights" of Article I of the "Bill of Rights" of the New York Constitution of 1938 states: "Everyone has the right to clean air and clean water and a healthy environment") (New York State Constitution. As revised, including amendments effective January 1, 2024. [Electronic resource] — Access mode: <https://dos.ny.gov/system/files/documents/2024/05/constitution-5-8-24.pdf > (date of application: 05/19/2024)).

In Switzerland, the first two federal constitutions (1848 and 1874) provided only fragmentary basic human and civil rights and freedoms. The constitutions of the subjects of the federation (cantons) became the vanguard in their recognition and legal consolidation, which, according to Swiss jurists, along with the judicial practice of the Federal (Supreme) Court and international human rights treaties "served as a source of inspiration in the formulation of the federal catalog" of fundamental rights and freedoms in the modern Federal Constitution of the Swiss Confederation of 1999 ^{[17, p. 442]}.

Based on considerations of reasonable precaution, it is probably correct that the Swiss Parliament has so far refused to introduce a separate fundamental right to digital privacy into the Federal Constitution of the country: there are quite strong arguments against this. But it is also good that at the level of the Swiss federal subjects, among which the Republic and the Canton of Geneva became a pioneer, the right to digital immunity is included or planned to be included in their constitutions, for which there are also serious arguments "for" (pro).

How necessary, useful, and in demand the constitutional novel considered in this article will be, and whether the right to digital inviolability will enter the annals of Swiss and all world constitutionalism in the future, practice will show, which, as we know, is the criterion of truth.

The research was carried out within the framework of the strategic academic leadership program "Priority 2030"