Data Subject Rights under the GDPR

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Data Subject Rights under the GDPR
 Data Subject Rights
under the GDPR
With a Commentary through the Lens of the
Data-​driven Economy

H E L E NA U. V R A B E C

1
 3
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To my son Albert
 Table of Cases

JUDGMENTS

Court of Justice of the EU

Case C-​201/​14 Bara and Others [2015] ECLI:EU:C:2015:638��������������������������� 64, 67n.18, 95
Case C-​364/​01 Barbier [2000] ECLI:EU:C:2003:665��������������������������������������������������������22n.46
Case C-​28/​08 Bavarian Lager [2010] ECLI:EU:C:2010:378 ��������������������������������������53, 104n.1
Case C-​582/​14 Breyer [2016] ECLI:EU:C:2016:779������������������������������������25n.60, 31, 34n.114
Case C-​398/​15 Camera di Commercio, Industria, Artigianato e Agricoltura di
Lecce v Salvatore Manni [2017] ECLI:EU:C:2017:197 �������������������������������������������139–​41
Joined cases Case C-​293/​12 and C-​594/​12 Digital Rights Ireland and Others
[2014] EU:C:2014:238�����������������������������������������������������������������������������������21n.33, 119–​20
Case C-​468/​10 ASNEF [2011] ECLI:EU:C:2011:777��������������������������������������������������22n.44, 23
Case C-​40/​17 Fashion ID [2019] ECLI:EU:C:2019:629�����������������������������������������������������32–​33
Case C-​6/​64 Flaminio Costa v E.N.E.L. [1964] ECLI:EU:C:1964:66������������������������������12n.69
Case C-​136/​17 GC and Others v Commission nationale de l’informatique et
des libertés [2019] ECLI:EU:C:2019:773������������������������������������������������������� 139, 154n.141
Case C-​507/​17 Google v Commission nationale de l’informatique et des
libertés [2019] EU:C:2019:772����������������������������������������������������������������������������������������� 138
Case C-​131/​12 Google Spain [2014] ECLI:EU:C:2014:317�������������������������������� 18–​19, 25n.61,
116–​17, 125n.109, 132–​33, 134–​39, 142, 146, 149, 156–​57
Case C-​473/​12 IPI v Geoffrey Engelbert [2013] ECLI:EU:C:2013:715 �����������92n.154, 95–​96
Case C-​555/​07 Kücükdeveci [2010] ECLI:EU:C:2010:21������������������������������������������������������� 18
Case C-​101/​01 Lindqvist [2003] ECLI:EU:C:2003:596��������������������������������������������������������� 116
Joined cases C-​465/​00, C-​138/​01 and C-​139/​01 Österreichischer Rundfunk
and Others [2003] EU:C:2003:294������������������������������������������������������������������������������������� 53
Case C-​673/​17 Planet49 GmbH [2019] ECLI:EU:C:2019:801��������������������������������������������� 100
Case C-​275/​06 Promusicae [2008] ECLI:EU:C:2008:54��������������������������������������������������25n.59
Case C‑13/​16 Rigas [2017] ECLI:EU:C:2017:336��������������������������������������������������������������68n.19
Case C-​553/​07 Rijkeboer [2009] ECLI:EU:C:2009:293�������������������������������������������������104, 117
Case C-​36/​75 Roland Rutili v Minister for the Interior [1975]
ECLI:EU:C:1975:137������������������������������������������������������������������������������������������������������17n.7
Case C-​73/​07 Satakunnan Markkinapörssi and Satamedia [2008]
ECLI:EU:C:2008:727����������������������������������������������������������������������������������������������������������� 53
Case C-​70/​10 Scarlet v Sabam [2016] ECLI:EU:C:2011:771��������������������������������������������31n.94
Case C-​362/​14 Schrems [2015] ECLI:EU:C:2015:650��������������������������������������������������� 119n.77
Case C 203/​15 and C 698/​15 Tele2 Sverige and Watson and Others [2016]
ECLI:EU:C:2016:970������������������������������������������������������������������������������������������������� 119n.77
Joined cases C-​92/​09 and C-​93/​09 Volker und Markus Schecke GbR,
Hartmut Eifert v Land Hessen [2010] ECLI:EU:C:2010:662 �������������������22n.44, 23n.51,
94n.162
Case C-​230/​14 Weltimmo [2015] ECLI:EU:C:2015:426��������������������������������������������������58n.68
Case C-​210/​16 Wirtschaftsakademie Schleswig-​Holstein [2018]
ECLI:EU:C:2018:57������������������������������������������������������������������������������������������������������58n.68
Opinion 1/​15 of the Court regarding Draft agreement between Canada and the
European Union on the transfer and processing of Passenger Name Record
data [2017] ECLI:EU:C:2017:592��������������������������������������������������������������������������������72n.42
xiv Table of Cases

Case T-​194/​04 Bavarian Lager v Commission [2007] ECLI:EU:C:2010:378

(General Court)������������������������������������������������������������������������������������������������������������26n.67

Commission Decisions
Google/​Double Click (Case COMP/​M.4731) Commission Decision 927
[2008] OJ C184/​10���������������������������������������������������������������������������������������������������������43–​44
TomTom/​TeleAtlas (Case COMP/​M.4854) Commission Decision 1859
[2008] OJ C237/​8 �����������������������������������������������������������������������������������������������������������43–​44

European Court of Human Rights

Barbulescu v Romania App no 61496/​08 (ECtHR, 12 January 2016) ����������������������������20n.31
Benedik v Slovenia App no 62357/​14 (ECtHR, 24 April 2018)����������������������������������������30n.89
Koch v Germany App no 497/​09 (ECtHR, 19 July 2012)��������������������������������������������� 184n.156
Magyar Helsinki Bizottsag v Hungary App no 18030/​11
(ECtHR, 8 November 2016)���������������������������������������������������������������������������� 21–​22, 26–​27
Mitev v Bulgaria App no 42758/​07 (ECtHR, 29 June 2010)����������������������������������������� 184n.156
MP and Others v Bulgaria App no 22457/​08 (ECtHR, 26 July 2011)������������������������� 184n.156
P and S v Poland App no 57375/​08 (ECtHR, 30 October 2012)��������������������������������������21n.38
Pretty v United Kingdom App no 2346/​02 (ECtHR, 29 April 2002) ������������������������������20n.29
S and Marper v United Kingdom App nos 30562/​04 and 30562/​04
(ECtHR, 4 December 2008) ����������������������������������������������������������������������������������������18n.12
Sanles v Spain App no 48335/​99 (ECtHR, 26 October 2000) ������������������������������������� 184n.156
Surikov v Ukraine App no 42788/​06 (ECtHR, 26 January 2017) ������������������������������������18n.16
Thévenon v France App no 2476/​02 (ECtHR, 28 February 2006) ����������������������������� 184n.156

National courts
United States
Roe v Wade 410 US 113 (1973)��������������������������������������������������������������������������������������������20n.28
United States v Jones 564 US 400 (2012)�����������������������������������������������������������������������������26–​27
The Netherlands
Judgment of the Dutch Supreme Court, 8 September 2017,
ECLI:NL:PHR:2017:933 ����������������������������������������������������������������������������������������� 150n.120
Judgment of the Amsterdam District Court, 19 July 2018,
ECLI:NL:RBAMS:2018:8606 ����������������������������������������������������������������������������������� 137n.53
Judgment of the Hague District Court, 11 February 2020,
ECLI:NL:RBDHA:2020:1013���������������������������������������������������������������������������������������206–​7
The Decision of the Dutch Supreme Court, 24 February 2017,
ECLI:NL:HR:2017:288 ��������������������������������������������������������������������������������������������� 195n.29
The Decision of the Amsterdam District Court, 25 September 2019,
ECLI:NL:RBAMS:2019:8329 ���������������������������������������������������������������������������������������203–​4
Belgium
Willem Debeuckelaere v Facebook Ireland Ltd., Facebook Inc. and
Facebook Belgium Bvba., Dutch-​language Brussels Court of
First Instance, judgment of 16 February 2018��������������������������������������������������������� 223n.53
 Table of Cases xv

The United Kingdom

Damer & Ors v Taylor Wessing LLP [2017] EWCA Civ 74��������������������������������������������������� 114
Dawson-​Damer & Ors v Taylor Wessing LLP [2019] EWHC 1258 (Ch)���������������������114, 115
Open Rights Group & Anor, R (On the Application of) v Secretary of State
for the Home Department & Anor [2019] EWHC 2562 (Admin)����������������������� 119n.76

Germany
Bundesverfassungsgericht, judgment of 15 December 1983,
BverfGE 65, 1 ���������������������������������������������������������������������������������������������������� 25–​26, 50–​51
Cologne Higher State Court, judgment of 14 November 2019,
ECLI:DE:OLGK:2019:1114.15U126.19.00��������������������������������������������������������������������� 204
 Table of Legislation

LAWS Directive 96/​9/​EC of the

European Parliament and
European instruments of the Council of 11 March
Charter of Fundamental Rights of 1996 on the legal protection
the European Union [2010] of databases [1996]
OJ C83/​389��������� 16–​17, 18–​19, 21, 22, OJ L77/​20�������������������������������������55n.52
23–​27, 28, 50, 51–​52, 53, 96, 113, Directive 2002/​58/​EC of the European
116–​17, 136–​37, 140, 170–​71 Parliament and of the Council
Commission Regulation (EU) No of 12 July 2002 concerning the
330/​2010 of 20 April 2010 on the processing of personal data and
application of Article 101(3) of the protection of privacy in the
the Treaty on the Functioning of electronic communications sector
the European Union to categories [2002] OJ L201��������������� 38–​40, 96–​98,
of vertical agreements and 100–​1, 204
concerted practices [2010] Directive 2005/​29/​EC of the
OJ L102 ������������������������������� 42–​43n.159 European Parliament
Convention for the Protection of and of the Council of 11 May
Individuals with regard to 2005 concerning unfair
Automatic Processing of Personal business-​to-​consumer
Data (Convention 108) (open commercial practices in the
for signature on 28 January 1981, internal market and amending
entered into force on 1 October Council Directive 84/​450/​EEC,
1985) ��������������������������������������������������� 21 Directives 97/​7/​EC, 98/​27/​EC
Convention for the Protection of and 2002/​65/​EC of the European
Human Rights and Fundamental Parliament and of the Council
Freedoms��������������������������������������11n.67 and Regulation (EC) No 2006/​
Council Directive 93/​13/​EEC of 5 April 2004 of the European
1993 on unfair terms in consumer Parliament and of the Council
contracts [1993] OJ L95���������������������� 232 [2005] L149/​22���������������������45, 232–​33
Council Regulation No 139/​2004 Directive 2011/​83/​EU of the
of 20 January 2004 on the European Parliament and
control of concentrations of the Council of 25 October
between undertakings 2011 on Consumer Rights,
[2004] OJ L24��������������������� 42–​43n.159 amending Council Directive
Directive 95/​46/​EC of the European 93/​13/​EEC and Directive
Parliament and of the Council 1999/​44/​EC of the European
of 24 October 1995 [1995] Parliament and of the Council
L281/​31���������� 9–​10, 64, 68, 69, 71n.39, and Repealing Council Directive
73, 76, 80, 83–​84, 84n.111, 95–​96, 85/​577/​EEC and Directive
100, 61, 105, 107, 113, 97/​7/​EC of the European
123–​24, 132–​34, 136, 148, Parliament and of the
149, 205–​6, 208, 213–​14 Council [2011] L304/​64������� 45, 46, 233
xviii Table of Legislation

Directive 2013/​37/​EU of the European Regulation (EU) 2018/​1807 of the

Parliament and of the Council of European Parliament and of
26 June 2013 amending Directive the Council of 14 November 2018
2003/​98/​EC on the re-​use of on a framework for the free
public sector information (PSI flow of non-​personal data in
Directive) [2013] OJ L175��������������� 164 the European Union [2018]
Directive 2015/​2366/​EU of the OJ L303 ���������������������������������������177–​78
European Parliament and of the Treaty of Lisbon amending the Treaty
Council of 25 November 2015 on on European Union and the
payment services in the internal Treaty establishing the European
market, amending Directives Community [2007] OJ C306/​1��������� 22
2002/​65/​EC, 2009/​110/​EC and Treaty on European Union
2013/​36/​EU and Regulation (EU) [1992] OJ C191����������������������������29n.83
No 1093/​2010, and repealing
Directive 2007/​64/​EC [2015] OJ Germany
L337/​35��������������������������������������������� 178 Federal Data Protection Act of 30 June
Directive 2016/​1148 of the 2017 (Federal Law Gazette I, 2097),
European Parliament and of as last amended by Article 12 of the
the Council of 6 July 2016 Act of 20 November 2019 (Federal
concerning measures for a Law Gazette I, 1626)����������������������120n.80
high common level of security
of network and information
Slovenia
systems across the Union
[2016] OJ L194/​1 �������������������������41–​42 Criminal Code, Official gazette of the
Directive (EU) 2019/​770 of the Republic of Slovenia No 91/​20������132n.19
European Parliament and of Data Protection Act, Official
the Council of 20 May 2019 gazette of the Republic of
on certain aspects concerning Slovenia No 86/​04 with further
contracts for the supply of digital amendments��������������������� 132, 136n.43
content and digital services
[2019] OJ L136/​1 ����������������������� 46, 233 United Kingdom
Regulation (EU) 2016/​679 of Data Protection Act 2018����������������� 115, 119
the European Parliament and
of the Council of 27 April 2016 on United States
the protection of natural persons
with regard to the processing California Assembly Bill
of personal data and on the free No 375����������������������������187–​88
movement of such data, and
repealing Directive International instruments
95/​46/​EC (General Data Vienna Declaration and Programme
Protection Regulation) [2016] of Action Adopted by the World
OJ L119/​1�������������� 9–​10, 29–​38, 42, 48, Conference on Human Rights in
59–​62, 64, 66–​96, 105, 106–​8, 109, Vienna on 25 June 1993������� 17–​18n.11
111–​12, 113–​15, 121–​22, 130, 133, Council of Europe, Protocol 1 to the
141–​50, 159–​60, 163–​71, 174, 176, Convention for the Protection of
179–​80, 197–​212, 213–​14, Human Rights and Fundamental
220, 225, 230–​35 Freedoms��������������������������������������������� 54
 List of Abbreviations

AI artificial intelligence
API application programming interface
B2C business to consumer
CA Cambridge Analytica
CJEU Court of Justice of the European Union
CMA Competition and Markets Authority (UK)
CNIL Commission nationale de l’informatique et des libertés
DCD Directive on Digital Content
DPA Data Protection Authority
DPaaS data portability as a service
DPD Data Protection Directive
DPO data protection officer
EBF European Banking Federation
EC European Commission
ECHR European Convention on Human Rights
ECtHR European Court of Human Rights
EDPB European Data Protection Board
EDPS European Data Protection Supervisor
EP European Parliament
EU European Union
FRA Agency for Fundamental Rights (EU)
FTC Federal Trade Commission
GDPR General Data Protection Regulation
ICO Information Commissioner’s Office
ICT information and communication technology
IoT Internet of Things
IP intellectual property
ISO International Standardization Organisation
IT information technology
LIBE Committee on Civil Liberties, Justice and Home Affairs
ML machine learning
MP Member of Parliament
NCC National Consumer Council (Norway)
NHS National Health Service
NIS network and information security
NSA National Security Agency (US)
OECD Organisation for Economic Cooperation and Development
PbD privacy by design
PIA privacy impact assessment
xx List of Abbreviations

RFID radio-​frequency ID
RTBF right to be forgotten
RWD real-​world data
SME small and/​or medium enterprise
TFEU Treaty on the Functioning of the European Union
UK United Kingdom
URL uniform (web) resource locator
US United States of America
 1
Introduction

1.1 The lack of individual control in the data-​driven economy

Since the late 20th century, the tremendous growth in the amount of information
and the means by which it can be disseminated has been driving a transition from
industry-​based to information-​based economies.1 The transformation of data into
a highly valuable asset2 has had profound consequences.3 This transformation has
affected how businesses value the data they hold and whom they allow to access it.4
It has enabled—​and even forced—​companies to change their business models.5 It
has altered how organisations think about data and how they use it.6 All of the lar-
gest internet companies—​Google, Facebook, Amazon, eBay, Microsoft—​treat data
as a major asset and source of value creation. In addition to tech giants, the big-​
data revolution also offers room for the expansion of start-​ups, small and medium-​
sized enterprises (SMEs), and large, traditional corporations, especially those that
deploy highly specialised analytic software able to scrutinise data in real time.7 Big-​
data sharing, selling, and licensing are often considered the great business oppor-
tunity of this era.8
The clearest evidence of the data outburst can be seen in daily life. Instant mes-
saging using mobile phones, easy access to documents through the cloud service,
and personalised advertisements are all developments based on widespread data
availability and reusability.

1 Mark J Davison, The Legal Protection of Databases (Cambridge University Press 2008). For in-

stance, the genetic sequencing data stored at the European Bioinformatics Institute has exploded and
has doubled almost every year. However, these hundreds of petabytes of data represent just 10% of the
tremendous amount of data stored at the CERN Swiss particle-​physics laboratory. Vivien Marx, ‘The
Big Challenges of Big Data’ (2013) 498 Nature 255, 255.
2 Davison (n 1) 52.
3 See e.g. OECD, ‘Data-​driven Innovation: Big Data for Growth and Well-​being’ (2015).
4 Viktor Mayer-​Schönberger and Kenneth Cukier, Big Data: A Revolution That Will Transform How

We Live, Work, and Think (Mariner Books 2014) 99.

5 ibid.
6 ibid.
7 OECD, ‘Exploring Data-​driven Innovation as a New Source of Growth: Mapping the Policy Issues

Raised by “Big Data” ’ (2013) OECD Digital Economy Papers No 222 www.oecd-​ilibrary.org/​exploring-​
data-​driven-​innovation-​as-​a-​new-​source-​of-​growth_​5k47zw3fcp43.pdf?itemId=%2Fcontent%2Fpap
er%2F5k47zw3fcp43-​en&mimeType=pdf accessed 24 August 2020.
8 OECD, ‘Data-​driven Innovation: Big Data for Growth and Well-​being’ (n 3) 76.

Data Subject Rights under the GDPR. Helena U. Vrabec, Oxford University Press. © Helena U. Vrabec 2021.
DOI: 10.1093/​oso/​9780198868422.003.0001
2 Introduction

In the literature, these advances have sometimes been described as the big-​
data revolution. The fundamental change is reflected in two recently coined
terms: data-​driven9 and big data.10 These terms convey two common trends.
The first trend is the existence of an extraordinarily large amount of available
data. This data is too big (volume), arrives too rapidly (velocity), changes too
quickly (variability), or is too diverse (variety) to be processed within a local
computing structure using traditional approaches and techniques.11 Later iter-
ations of the definition have expanded to include new characteristics such as
veracity and value. Particularly ‘value’, as a big-​data factor, has grown in im-
portance. Certainly, today’s discussion on big data is most often economically
oriented. The burning question concerns how big data helps companies outper-
form competitors and how it creates value by unleashing the potential of hidden
knowledge.12 This leads to the second trend: data analytics. While, tradition-
ally, analytics has been used to find answers to predetermined questions (the
search for the causes of certain behaviour, i.e. looking for the ‘why’), analytics
of big data leads to finding connections and relationships between data that are
unexpected and that were previously unknown.13 Through the use of modern
analytics tools, big data makes it possible to see patterns where none actually
exist because large quantities of data can offer connections that radiate in all dir-
ections.14,15 By employing sophisticated analytic techniques, data’s value shifts
from its primary use to its potential future uses or, as this book calls them at
times, reuses.
Data-​driven companies have exhibited particular interest in personal data.
While this type of data is relatively easy to monetise, e.g. through behavioural ad-
vertising, it is also strictly regulated and protected on the human rights level.16 This
has been noticeably demonstrated in the EU, where it is believed that having con-
trol over personal data is a fundamental right.17

9ibid.
10Authors often write about big data in the context of a big-​data revolution. Mayer-​Schönberger and
Cukier (n 4). See also Omer Tene and Jules Polonetsky, ‘Big Data for All: Privacy and User Control in
the Age of Analytics’ (2013) 11 Northwestern Journal of Technology and Intellectual Property 240.
11 ISO/​IEC JTC 1, ‘Big Data Preliminary Report 2014’ (ISO 2015) 5.
12 James Manyika and others, Big Data: The Next Frontier for Innovation, Competition, and

Productivity (McKinsey Global Institute 2011).

13 Lokke Moerel, Big Data Protection: How to Make the Draft EU Regulation on Data Protection

Future Proof (Tilburg University 2014) 8.

14 danah boyd and Kate Crawford, ‘Six Provocations for Big Data’ (A Decade in Internet

Time: Symposium on the Dynamics of the Internet and Society, Oxford, September 2011).
15 While this thesis refers to big data in the sense of the ‘4-​Vs definition’ as explained above, in the

literature big data may also have other meanings; for example, it can be used as a synonym for data ana-
lytics. ibid.
16 See section 2.2 below.
17 European Commission, ‘How Does the Data Protection Reform Strengthen Citizens’ Rights?’

(2016) ec.europa.eu/​newsroom/​just/​document.cfm?doc_​id=41525 accessed 25 August 2020.

 The individual in the data-driven (big-data) economy 3

1.2 The individual in the data-​driven (big-​data) economy

In estimating the impacts of the data economy on individuals, authors in the eco-
nomic field seem to contradict each other. Some believe that data can play a signifi-
cant economic role to the benefit of both private commerce and national economies
and see a great benefit of the data-​driven economy for the well-​being of citizens.18
In contrast, others warn that the big-​data economy in fact decreases consumer sur-
plus.19 Their argument is in line with those who question data-​economy benefits
due to undermining fundamental rights and freedoms20 (consistent with concerns
expressed elsewhere in this book).
To depict the risks to an individual in a data-​driven economy, the analysis below
focuses on a limited number of core values (privacy, transparency, autonomy,
equality, and power symmetry) that can be compromised as a result of data-​driven
business practices.21 As is demonstrated in this book, when the five values cannot
be adequately pursued, individuals may be unable to effectively control personal
data, hence legal mechanisms may be necessary to mitigate the risk.

1.2.1 Compromised privacy

Privacy is a concept that allows for multiple definitions.22 Chapter 2 of this book
provides a detailed analysis of the term and traces attempts to capture its meaning.
For now, it suffices to understand privacy in its ordinary sense: as an attribute of
things that affect or belong to private individuals, that are generally distinct from
the public, and that are kept confidential and secret (e.g. not disclosed to others
and kept from public knowledge or observation).23
The data-​driven economy often gives the impression that privacy has been elim-
inated or is even dead.24 Mark Zuckerberg, Facebook’s CEO, argued that privacy
has fundamentally evolved in recent years and can no longer be seen as a social

18 James Manyika and others (n 12) 1–​2. See also OECD, ‘Data-​driven Innovation: Big Data for

Growth and Well-​being’ (n 3). The benefits listed are convenience, self-​expression, reduced cost, new
knowledge, and security.
19 Anna Bernasek and DT Mongan, All You Can Pay (Nation Books 2015).
20 See e.g. Tal Z Zarsky, ‘ “Mine Your Own Business!”: Making the Case for the Implications Of the

Data Mining of Personal Information in the Forum of Public Opinion’ (2002) 5 Yale Journal of Law and
Technology 1.
21 This section takes inspiration from Richards and King’s framework of three paradoxes of big

data: the transparency, the identity, and the power paradox. Neil M Richards and Jonathan J King,
‘Three Paradoxes of Big Data’ (2013) 66 Stanford Law Review Online 41.
22 Daniel J Solove, ‘Conceptualizing Privacy’ (2002) 90 California Law Review 1087, 1088.
23 The Concise Oxford Dictionary (8th edn, Oxford University Press 1990); Black’s Law Dictionary

(2nd edn, The Lawbook Exchange 1910).

24 Neil M Richards and Jonathan J King, ‘Big Data Ethics’ (2014) 49 Wake Forest Law Review

393, 409.
4 Introduction

norm.25 While it is true that privacy as a social norm has been transformed, it has
not lost any of its strength. On the contrary, considering the many new types of
privacy violations, some of which are mentioned below, privacy has never been
more relevant. Zuckerberg himself is proof. In a photo shared via Twitter in the
summer of 2016, one can see his computer, on which the camera and headphone
jack are covered with tape, and the email client he uses is Thunderbird (a popular
email client among the tech-​savvy).26 Zuckerberg’s example may sound anecdotal,
but it is an indicator of a wider trend, suggesting that people increasingly care
about keeping their work and conversations private.
In the data-​driven economy, dataveillance is what most apparently puts privacy
at risk. Dataveillance is the systematic use of personal data systems in the investi-
gation or monitoring of the actions or communications of one or more persons.27
In the data economy, in which individuals’ behaviour and all their actions are in-
creasingly datafied, dataveillance is easy and cheap to conduct. As a result, more
individuals and larger populations can be monitored.28 Dataveillance can be par-
ticularly dangerous because it enables interference regarding facts that someone
would rather keep secret. For example, a person may share information about
her hobbies or favourite books but not information about her sexual orientation.
However, by using big-​data techniques, this information can be predicted anyway.
Kosinski, Stillwell, and Graepel have shown how a range of highly sensitive per-
sonal characteristics—​including sexual orientation, ethnicity, religious and polit-
ical views, personality traits, intelligence, happiness, use of addictive substances,
and parental separation—​can be predicted with high accuracy on the basis of
Facebook likes.29
In the big-​data economy, even anonymised data cannot guarantee privacy. In
fact, anonymised data can be as useful as personal data in many cases.30 A typical
example may involve a company that wants to personalise its marketing campaigns
with the help of profiling. The use of personal data may be helpful to assess which

25 Bobbie Johnson, ‘Privacy No Longer a Social Norm, Says Facebook Founder’ The Guardian (Las

Vegas, 11 January 2010) www.theguardian.com/​technology/​2010/​jan/​11/​facebook-​privacy accessed 25

August 2020.
26 Katie Rogers, ‘Mark Zuckerberg Covers His Laptop Camera. You Should Consider It, Too’ The

New York Times (22 June 2016) www.nytimes.com/​2016/​06/​23/​technology/​personaltech/​mark-​

zuckerberg-​covers-​his-​laptop-​camera-​you-​should-​consider-​it-​too.html accessed 25 August 2020.
27 Roger Clarke, ‘Introduction to Dataveillance and Information Privacy, and Definitions of

Terms’ (Roger Clarke’s Website, 24 July 2016) www.rogerclarke.com/​DV/​Intro.html#Priv accessed 25

August 2020.
28 ibid.
29 Michal Kosinski, David Stillwell, and Thore Graepel, ‘Private Traits and Attributes Are Predictable

from Digital Records of Human Behavior’ (2013) 110 Proceedings of the National Academy of Sciences
of the United States of America 5802.
30 Daniel Bachlechner and others, ‘WP1 Mapping the Scene: D1.2 Report on the Analysis

of Framework Conditions’ (Deliverable for the EuDEco H2020 Project, 2015) 30 www.
universiteitleiden.nl/​binaries/​content/​assets/​rechtsgeleerdheid/​instituut-​voor-​metajuridica/​d1.2_​
analysisofframeworkconditions-​v1_​2015-​08-​31-​1.pdf accessed 25 August 2020.
 The individual in the data-driven (big-data) economy 5

people are potentially interested in specific products or services, but aggregated

data at the street or neighbourhood level may be similarly useful and cheaper to
process. Inferring information from group profiles supports predictions about
someone’s personal circumstances. As soon as ‘[t]‌hree or four data points of a spe-
cific person match inferred data (a profile), which need not be personal data . . .’,31 it
is possible accurately to predict characteristics of individual users.32
The flow of data among the actors in the data-​driven economy escalates the risk
of privacy intrusions. This is why Nissenbaum believes that meeting individual
expectations about the flow of personal information sits at the core of privacy.33
Personal data is often acquired from a number of data sources, including data bro-
kers, by means of data combination. For example, Facebook’s own databases were
being merged with detailed dossiers obtained from commercial data brokers about
users’ offline lives.34 In this way, Facebook improves its own data with categories
that users did not share or want to reveal on Facebook. If information is used in
contexts that are at odds with individuals’ expectations, this can lead to feelings of
discomfort.35

1.2.2 Lack of transparency

Transparency describes something that is easy to perceive or detect and is open

to scrutiny. In contrast, non-​transparency can be illustrated with the metaphor of
a black box: a complex system or device whose internal workings are hidden or
not readily understood.36 In the context of data-​driven decision-​making, the black
box metaphor stands for outcomes that emerge without satisfactory explanation.
Transparency is the second value at risk in the era of the data-​driven economy.
Although big data promises to make the world more transparent, its collection is
often invisible and its tools and techniques opaque, curtained off by layers of phys-
ical, legal, and technical protection.37
Non-​transparent processing of data occurs in all the stages of the so-​called data-​
driven value chain: when data is acquired, when it is analysed, and when it is used.
The ubiquitous and automated collection of data in the data-​driven economy is

31 Mireille Hildebrandt, ‘Slaves to Big Data. Or Are We?’ (2013) 17 IDP Revista de Internet, Derecho

y Política 27, 33.

32 Ariel Porat and Lior J Strahilevitz, ‘Personalizing Default Rules and Disclosure with Big Data’

(2014) 112 Michigan Law Review 1417, 1440.

33 Helen Nissenbaum, Privacy in Context (Stanford University Press 2010).
34 Julia Angwin, Terry Parris Jr, and Surya Mattu, ‘Facebook Is Quietly Buying Information from

Data Brokers about Its Users’ Offline Lives’ Business Insider (30 December 2016) www.businessinsider.
com/​facebook-​data-​brokers-​2016-​12?r=UK&IR=T accessed 25 August 2020.
35 Nissenbaum (n 33) 21.
36 See ‘black box, n’ (Lexico) https://​en.oxforddictionaries.com/​definition/​black_​box accessed 25

August 2020.
37 Richards and King (n 21) 42.
6 Introduction

opaque. Although law typically requires data collectors to explain the ways and
circumstances in which personal data is collected, used, and shared, it has been
shown that individuals have difficulty understanding what has been presented to
them and what they have consented to.38 In the analysis stage, the key problem
is that little is known about the processes used to derive all sorts of findings and
that hidden algorithms are shrouded in secrecy and complexity. Hardly anyone can
fully capture how algorithms work and monitor their actions. For example, online
data marketplaces may be used as a source of numerous data points for an algo-
rithm to determine a customer’s creditworthiness.39 Because of a bad credit score
calculated on the basis of aggregated information, a consumer will be charged
more, but she will never understand how exactly this amount was calculated or
know what information the marketplaces provided.40 Sometimes, not even engin-
eers working with the algorithms are fully able to capture their nature and monitor
their actions.41
The black box problem is duplicated in the cloud computing environment,
mainly due to indefinite and non-​transparent storage. In most cases, individuals
are unaware of what occurs in a cloud and how data can be put to (secondary)
use. Data can be shared with third parties, sold to advertisers, or handed over to
the government. This loss of transparency on the internet can result in a feeling of
powerlessness.42

1.2.3 Limited choice and autonomy

Faden and Beauchamp define autonomy in practical terms as ‘the personal rule of
the self by adequate understanding, while remaining free from controlling inter-
ferences by others and from personal limitations that prevent choice’.43 Three di-
mensions of autonomy stem from this definition: freedom from interference by

38 Bart Custers, Simone van der Hof, and Bart Schermer, ‘Privacy Expectations of Social Media

Users: The Role of Informed Consent in Privacy Policies’ (2014) 6 Policy and Internet 268, 278.
39 See e.g. Mikella Hurley and Julius Adebayo, ‘Credit Scoring in the Era of Big Data’ (2016) 18 Yale

Journal of Law and Technology 148.

40 ibid.
41 ‘[e]‌ven those on the inside can’t control the effects of their algorithms. As a software engineer at

Google, I spent years looking at the problem from within . . .’ David Auerbach, ‘The Code We Can’t
Control’ Slate (14 January 2015) www.slate.com/​articles/​technology/​bitwise/​2015/​01/​black_​box_​so-
ciety_​by_​frank_​pasquale_​a_​chilling_​vision_​of_​how_​big_​data_​has.html accessed 25 August 2020.
42 Bruce Schneier, Data and Goliath (WW Norton & Company 2015) 115. As Schneier puts it: ‘[t]‌rust

is our only option. There are no consistent or predictable rules. We have no control over the actions of
these companies. I can’t negotiate the rules regarding when yahoo will access my photos on Flicker.
I can’t demand greater security for my presentations on Prezi or my task list on Trello. I don’t even know
the cloud providers to whom those companies have outsourced their infrastructures . . . And if I decide
to abandon those services, chances are I can’t easily take my data with me’.
43 Bart Schermer, Bart Custers, and Simone van der Hof, ‘The Crisis of Consent: How Stronger

Legal Protection May Lead to Weaker Consent in Data Protection’ (2014) 16 Ethics & Information
Technology 171, 174.
 The individual in the data-driven (big-data) economy 7

others, free choice, and self-​governance. The examples below show how big data
undermines each of them.
Autonomy, particularly the free-​choice aspect, can be restricted as a result
of limited confidentiality and privacy of personal data traces on the internet.
Knowing about the mass surveillance powers of the US National Security Agency
(NSA) might deter us from using a US online service.44 The abstention from an
action or behaviour due to the feeling of being observed is described as a chilling
effect.45 However, in some cases, the feeling of being watched creates a nudge for
individuals to act. For example, research has shown that people pay more for coffee
on the honour system46 if eyes are depicted over the collection box.47
Another example of compromised autonomy is linked to non-​transparent data
processing and decision-​making. In 2009, Eli Pariser noted that the news he re-
ceived and search results that appeared on Google differed substantially from those
viewed by his colleagues.48 He soon realised that the reason was his personalised
news website. Based on his user profile and corresponding group profiles, the web-
site was able to learn about his inferred political interests, which in turn meant that
it could give more prominence to his favourite political group’s media items. He de-
scribed the situation as a filter bubble: ‘a synonym for a unique universe of informa-
tion for each of us’.49 The filter bubble poses a risk of seriously limiting someone’s
free choice. For example, when users of such personalised services form their polit-
ical ideas, they may encounter fewer opinions or political arguments.50

1.2.4 Discrimination

The key objective of the (personal) data-​driven decision-​making is to differentiate

between individuals. Clearly, such decisions can have important consequences
for individuals and can work to both their advantage and disadvantage. Certain

44 Glenn Greenwald, No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State

(Metropolitan Books 2014).

45 Jonathon W Penney, ‘Chilling Effects: Online Surveillance and Wikipedia Use’ (2016) 31 Berkeley

Technology Law Journal 117.

46 A system of payment or examinations which relies solely on the honesty of those concerned.
47 Ryan M Calo, ‘The Boundaries of Privacy Harm’ (2011) 86 Indiana Law Journal 1131, 1147.
48 Eli Pariser, ‘Beware Online Filter Bubbles’ (March 2011) www.ted.com/​talks/​eli_​pariser_​beware_​

online_​filter_​bubbles?language=en accessed 25 August 2020.

49 ibid.
50 Filter bubbles could even interfere with collective goods such as democracy. Harvard law pro-

fessor Jonathan Zittrain explained in 2010 how ‘Facebook could decide an election without anyone
ever finding out’, after the tech giant secretly conducted a test in which it was allegedly able to increase
voter turnout by 340,000 votes around the country on election day simply by showing users a photo of
someone they knew saying ‘I voted’. Trevor Timm, ‘You May Hate Donald Trump. But Do You Want
Facebook to Rig the Election against Him?’ The Guardian (19 April 2016) www.theguardian.com/​
commentisfree/​2016/​apr/​19/​donald-​trump-​facebook-​election-​manipulate-​behavior accessed 25
August 2020. See also Robert M Bond and others, ‘A 61-​Million-​Person Experiment in Social Influence
and Political Mobilization’ (2012) 489 Nature 295.
8 Introduction

practices are legally allowed, although it could be argued that they are ethically
disputable. For example, some online platforms are able to use the information col-
lected by consumers to their detriment: by setting the price as close as possible to
the maximum price that someone is willing to pay, they are able to exploit con-
sumers’ price sensitivity.51 This is an example of price discrimination, which may
become increasingly aggressive given the level of dataveillance on the internet.52
In addition, data-​driven decisions can also lead to discriminatory practices that
cross the boundaries of what is legally acceptable. Discrimination that occurs when
people are treated differently on the basis of protected grounds is, in principle, pro-
hibited regardless of whether it occurs in a direct or indirect way.53 An employer
may refuse a candidate because an internet (social media) search reveals how old
she is. She may be in her 60s and therefore too close to retirement, or she may be in
her 30s and therefore too likely to become pregnant. This would constitute illegal
discrimination on the grounds of age or sex.54 Data-​driven decision-​making may
also lead to hidden discrimination. Group profiles inferred from big data are often
used as a tool to make decisions about the members of the group, but not every
group characteristic can justify different treatment. Characteristics such as address
code can be legitimate factors in differentiation, but they may mask ethnicity or
religion—​both of which are protected grounds.55

1.2.5 Power and control asymmetries

In the data-​driven economy, power is linked to two dimensions: (1) the access
to data and control over it; and (2) the ability of sophisticated data processing.56

51Bernasek and Mongan (n 19).

52Price discrimination and price differentiation are synonyms in economic jargon.
53 Francesca Bosco and others, ‘Profiling Technologies and Fundamental Rights and

Values: Regulatory Challenges and Perspectives from European Data Protection Authorities’ in Serge
Gutwirth, Ronald Leenes, and Paul De Hert (eds), Reforming European Data Protection Law (Springer
2015) 3, 19.
54 Orla Lynskey, The Foundations of EU Data Protection Law (Oxford University Press 2015) 199.
55 Bart Custers, The Power of Knowledge: Ethical, Legal, and Technological Aspects of Data Mining and

Group Profiling in Epidemiology (Wolf Legal Publishers 2004) 114.

56 Mark Andrejevic and Kelly Gates, ‘Big Data Surveillance: Introduction’ (2014) 12 Surveillance &

Society 185, 190. Although the power asymmetry is most apparent in the relationship between data-​
driven businesses and individuals, it can also be observed in relationships between other actors in the
economy. Small businesses often become dependent on big-​data holders and powerless in relation to
big data-​holders. For example, small businesses have limited access to many valuable databases. Bart
Custers and Daniel Bachlechner, ‘Advancing the EU Data Economy: Conditions for Realizing the Full
Potential of Data Reuse’ (2017) 22 Information Polity 291, 293 https://​papers.ssrn.com/​sol3/​papers.
cfm?abstract_​id=3091038 accessed 11 September 2020. However, power asymmetry affects author-
ities too, as these authorities may struggle to understand the data-​driven economy and its conse-
quences. ‘[T]‌o understand what is going on we have to go for geeks,’ stated the director of the European
Consumer Organisation to express her frustration with the data economy black box. Monique Goyens,
‘Welcome speech’ (EDPS-​BEUC conference, Brussels, 29 September 2016) https://​edps.europa.eu/​
data-​protection/​our-​work/​publications/​events/​edps-​beuc-​conference-​big-​data-​individual-​rights-​
and_​de accessed 25 August 2020.
Another random document with
no related content on Scribd:
 It was for a fact. The more Texas thought over it the more he
became filled with a vague sort of alarm, which he didn’t like. Those
yearlings had put up this plot for some purpose. That no one could
doubt. Perhaps they were carrying it out now, and with Mark all alone
among them.
“That fellow Mallory ain’t used to guns,” mused Powers. “He
needs me to take care of him. I reckon I’ll go back!”
A very sensible resolution that, Texas! By all means, hurry up!
About to carry it into effect, he wheeled and started to leave the
clearing. A second later he staggered back with an inarticulate gasp
of horror.
The Texan’s face was a study at that particular moment. His hair
seemed fairly to rise beneath his cap. His jaw dropped, and his
knees began to fail him.
Surely never had an ex-cowboy been more unnerved before.
Those of us who know Texas know that he was no coward. One
might say with certainty that neither madman nor yearling―​no, nor
even ghost―​could have produced such an effect upon him. And that
indeed was the fact; this apparition was one against which a
thousand revolvers could do nothing. And Texas was ruined!
Stern and solemn, his dignified figure towering in the moonlight,
there had marched out of the woods no less a person than
Lieutenant Allen, the “tac” of Company A!
A feather might have bowled over our gallant plebe; a regiment of
tin soldiers put him to flight. He was simply paralyzed. And he stood
and stared at the officer in open-mouthed consternation.
Lieutenant Allen was mad all the way through; any one could
have seen that. He was glaring at his helpless prisoner.
“Mr. Powers!” he thundered, “what does this mean?”
Poor Texas didn’t know; and so he didn’t try to say. He merely
gasped.
 “This is a nice state of affairs, indeed, sir!” the officer continued.
“Beyond cadet limits, sir! Roaming the woods at night! And with
revolvers in your hand, too. What are you doing with those weapons,
sir?”
Texas was still silent in consternation.
“Put them on the ground this instant!” commanded Allen.
“Now, then, sir,” the angry officer went on, “I suppose you
understand that you have rendered yourself liable to court-martial?
And Mr. Mallory, also!”
The plebe winced at that last; poor fellow, he had been consoling
himself with the hope that Mark, at least, was safe.
“I know it, sir!” he moaned.
“I thought you had more sense, both of you. I have learned that it
is your practice to behave this way continually, and I propose to see
that you are punished. Your cadet days are numbered from this
moment, Mr. Powers.”
Big tears gathered in the Texan’s eyes, but he choked back the
rising sob and stared all the harder at his superior. Just then he
remembered that he had forgotten to salute, and so he saluted,
being too dazed to think of anything else to do. He was gone! And
Mark, too! Their offense had only one penalty, a swift one―​
dismissal.
“Mr. Powers,” said the lieutenant, sternly, “you will march back to
camp and return to your tent, Mr. Mallory with you―​at once! Do you
hear?”
And Texas saluted once more, faced about and strode off into the
deep, black woods feeling as if his heart would break.
As for Allen, once alone, he turned and fell to pacing back and
forth in the little clearing, musing to himself. Angry though that worthy
officer had been at first, he could not hide the fact from himself that
he hated to ruin Mallory.
 “He should have known better sense!” he muttered. “And such a
fine lad! Plague take it!―​but I’ve got my duty to do, and the
commandant must attend to the rest. Discipline would be ruined if I
let a thing like this pass.”
With this thought in his mind the tactical officer faced about and
started toward camp. He took but two steps, however. Then he
stopped!
It was not because he wanted to, either. It was because
somebody stopped him, and that somebody nearly stopped his heart
from beating, as well. The officer felt two sinewy arms flung about his
body, pinioning them as if in a vise. In all his life Allen had never felt
such a paralyzing clutch as that.
But one idea flashed over him. Texas had attacked him! Enraged
at having been detected, the wild cowboy had been driven to
desperation―​perhaps even to murder!
Allen struggled with all his might. He did not wish to cry out, to
alarm the camp. He wished to bring that wild lad to his senses, to
subdue his ferocious temper. The officer felt his hot breath beating
on his neck, and heard him pant as he hugged him in his clutch of
iron.
With one mighty effort, an effort that took every bit of strength that
was in him, the officer managed to writhe his body about so as to
face his assailant. As he did so he gave vent to a hoarse cry of
horror. It was not Texas!
And the next instant Allen felt the arms about him relax, felt a
clawlike hand clutch him by the throat and drive his head back, fling
him to the ground and grasp his windpipe with a force that made him
gasp, made him writhe, made him turn blue in the face. Then
everything grew dark before him.
 CHAPTER XXIX.

THE END OF IT ALL.

Mark Mallory lay hiding in the bushes at the edge of the camp.
There was little for Mark to do except to wait, to wait with all possible
patience. It did not seem likely that anything would happen until
Texas returned.
The camp was perfectly silent and motionless; that figure which
left it was the last to appear. The moonlight shone on the white tents
with a ghostly pallor, which the dancing camp-fires served to
increase. But there was no sign of Bull or his friends―​either behind
or before. Mark kept watch in both directions.
He waited perhaps five minutes thus. Then he began to think that
it was time for Texas to return. He allowed him opportunity to reach
the clearing and hurry back; there was no reason for his delaying.
And consequently when he did not come it was a very short while
indeed before his friend became suspicious. Something must have
kept Powers; and if something were keeping him who could it be but
Bull?
A good deal hinged upon Mark’s next action, as it happened. But
he had not the least idea of that―​of the danger he was to run into.
The problem as it presented itself to him was that Texas didn’t return
promptly, as he had said he would; and for that there must be some
reason. That reason Mark must find.
“It won’t do any harm to take a run back there and see,” he
mused. “Bull and that gang may have overpowered Texas in spite of
his guns.”
There was no sign of trouble in camp. With this idea in his mind,
the plebe arose hastily and without a moment’s hesitation, started
back into the woods. He, too, was becoming suspicious and he
clutched his revolver tightly.
If the reader has ever found himself in a forest at midnight he
knows that it is no fun. And it makes no difference how courageous
one may be, either. Mark was no coward, but he was human, and he
felt quite creepy as he pushed his way ahead through the black
forest shadows. He pictured to himself all sorts of unpleasant
possibilities, the least of which was a conflict with those yearlings.
There was but little time, however, for such unpleasant
anticipations, for the distance to the clearing was short. Mark
reached the edge of it without interruption of any kind and promptly
pushed his way through the surrounding thicket. A moment later he
was standing upon the spot he sought.
He saw no one; the place was as deserted and silent as it had
been when Texas was there. But for the shadows of the trees that
waved to and fro on the ground, and for the gentle night breeze that
rustled through the branches, the place was as silent as death.
Mark stood motionless where he was; he held his weapon in his
hand ready for the slightest danger, but as he gazed about him and
saw no sign of any foe, his vigilance relaxed and he bowed his head
in thought.
“Where on earth can Texas have gone?” he muttered, half aloud.
“This is the strangest――”
He never finished the sentence. A sound had interrupted him, a
sound which made his flesh creep. It was a low groan.
Mark started back in consternation. It had come from the edge of
the clearing, that voice! And whose could it be but the Texan’s?
Texas had been captured by the yearlings!
 Mark never hesitated an instant. He made a leap for the spot,
cocking his revolver as he did so. He bent down to push his way
through the bushes, to rescue his gallant comrade.
The next instant, with a thud that shook the woods and almost
tumbled the plebe upon his face, a heavy body landed upon his back
and flung its arms about him.
But one idea occurred to Mark at that moment. It was Bull or one
of the yearlings! His first impulse was to point his pistol over his
shoulder and fire. He checked it as he recovered his self-possession;
he did not want to shoot anybody, and he did not want to alarm the
camp. He would fight this hand-to-hand battle, even though he was
at a disadvantage.
Mark’s assailant evidently knew that he was armed, for the plebe
felt a hand reaching out toward the weapon. With a violent effort he
managed to turn to get a view of his assailant. When he succeeded
he gave a gasp of horror, just as the unfortunate lieutenant had
done. For he found out then who his assailant was.
Quick as a flash Mark aimed his revolver straight in the other’s
face. He pulled the trigger, but he was too late.
His assailant’s finger had been slipped in between the trigger and
the guard, and the weapon was useless! The next instant the man
gave a violent wrench that nearly broke Mark’s wrist and that sent
his revolver flying through the air.
Then came the battle. Mark Mallory found himself face to face
with a horrible creature; he was struggling in the deadly grip of “the
maniac of the den!”
It was a fight to the death. The creature had the strength of a
tiger; Mark could see his muscles bulging beneath his naked skin,
and he felt a grip of steel tightening about him. He saw, too, a
ferocious face glaring into his, warning him to expect no mercy. The
man’s hot and eager breath beat against the lad’s brow, and his eyes
fairly flashed with fury.
 He was an old man, with a great, long beard and hideous, matted
hair. He was almost naked and apparently he was dumb. The silence
with which he made his grim struggle was the most appalling part of
it all.
The two swayed back and forth in the clearing, straining every
ounce of muscle that was in them. The maniac was strong, but he
had a foeman worthy of him. The grip in which he had the lad served
to bind his hands to his side, but when the other came to bear him to
the ground it was quite another matter. That meant a wrestling
match, and a long and weary one, too.
It seemed an age to Mark in his terrible plight. He could not free
himself, writhe and twist as he would; and he knew not what trick his
savage opponent might try next. And so, back and forth he
staggered, bending and swaying.
The climax came with the swiftness of a lightning flash. The
maniac, furious at the delay, tried the same trick he had tried upon
Allen. He released his grip, sprang like a wildcat upon his victim,
fastened his grasping, clawlike fingers in his throat, and shut them
together like a steel trap.
But there was something that the fiendish creature had not
calculated on, if indeed he had calculated at all. That thing was the
quickness that months of West Point discipline had given to Mark, to
say nothing of numberless battles with the yearlings. The lad
realized his deadly peril.
He clinched his fist and swung his mighty arm with a blow like a
sledge-hammer stroke.
He caught his assailant full upon the chin, and the latter’s head
shot back with a snap. He recovered himself a moment later and
sprang in again. But he had lost his chance.
Mark was ready for him then, nor did he mean to be caught in a
trap again. He was as quick to leap away as his assailant to leap at
him. After that it was a boxing match, at which none was more skillful
than Mark. Bounding, dodging here and there, his foe never once
succeeded in fastening upon him, while Mark landed blow after blow
with all his might.
The plebe was watching warily for a chance to end the battle. He
knew that he had it all his way then. The maniac halted, breathless;
the other took his cue. A moment later the savage creature was lying
prone upon the ground, writhing helplessly from the effects of the
crushing swing that had landed full upon his forehead.
Mark would have stopped to bind him safely in some way, but at
that instant he heard the groan repeated. Texas! And instantly Mark
dashed toward the spot again, wild with dread for his friend.
The figure was lying upon the ground in the bushes. The plebe
snatched him up, bore him out into the moonlight. The next moment
he staggered back almost blinded with horror at what he saw. It was
Allen!
The lieutenant was gasping feebly; he fixed his bloodshot eyes
upon Mark. Then sat up convulsively and gazed about him in terror.
“The man!” he gasped. “The man!”
Mark was too dumfounded to answer in words, but he pointed
across the clearing at the figure.
“Catch him!” panted the officer. “Don’t let him get―​away!”
At this moment they saw the maniac raise himself upon his elbow.
Quick as a wink Mark sprang up and made a dive for his revolver. He
found it lying on the ground, and whirled about. But he was too late.
The man was gone.
“Anyhow, he won’t come back,” was the plebe’s reflection. “And I
don’t care if he does. Great heavens! I’m gone! Allen’s seen me.”
Mark’s first impulse was to turn and make a dash for camp, in
hope that the dazed lieutenant had not recognized him. But he felt
that the officer needed help; so he turned and marched resolutely
toward him.
 “He―​he nearly had me killed,” the latter gasped, as Mark helped
him to a sitting posture. “Who is he?”
“I don’t know,” was the other’s truthful answer.
“You have saved my life,” the officer whispered, hoarsely. “It was a
terrible experience. I saw you fighting.”
There was a silence after that.
“Help me back to camp,” said Allen, at last. “And take this for a
warning. Don’t leave it at night again.”
“I’ll not have another chance,” groaned Mark. “This’ll mean court-
martial for me.”
A moment later he almost tumbled backward with amazement
and delight.
“Nonsense,” said Allen. “I do not mean to report you. I couldn’t.”
When Mark got back to his tent he found Texas almost in tears.
“It’s all up with me,” said the tall plebe. “I’ll pack up to-morrow.”
“Don’t be so sure of it,” said Mark. Then he told his own tale. “I’ll
see Allen in the morning.” And he did.
To cut a long story short, Texas escaped―​through Mark’s efforts.
But the escape was so narrow that the tall youth was mighty sober
for a long while after.
“We must square up with Bull, b’gee!” said Dewey.
“Yea, by Zeus!” came from the Parson.
“Of course, bah Jove!” lisped Chauncey.
And Sleepy nodded affirmatively.
And now let us sound taps and say, as do the guards:
“All’s well!”
THE END.
Did you like this story?
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 B o y s ’ O w n L i b r a r y.
Adventures of a Telegraph Boy
Adventures of a Young Athlete
Arthur Helmuth
Beach Boy Joe
Boats, Bats and Bicycles
Bob Porter at Lakeview Academy
Bound for Annapolis
Boy Boomers
Boy Cattle King
Boy from the West
Boys in the Forecastle
Butcher of Cawnpore
Cadet’s Honor, A.
Cadet Kit Carey
Camp in the Snow, The
Campaigning with Braddock
Canoe and Camp-Fire
Captain Carey
Centreboard Jim
Chased Through Norway
Check Number 2134
Horatio Alger, Jr.
Matthew White, Jr.
Edward S. Ellis.
Lieut. James K. Orton.
Ernest A. Young.
Walter Morris.
Ensign Clarke Fitch, U. S. N.
Gilbert Patten.
Gilbert Patten.
Gilbert Patten.
George H. Coomer.
William Murray Graydon.
Lieut. Fred’k. Garrison, U. S.
A.
Lieut. Lounsberry.
William Murray Graydon.
William Murray Graydon.
St. George Rathborne.
Lieut. Lounsberry.
Henry Harrison Lewis.
James Otis.
Edward S. Ellis.
Clif, the Naval Cadet
Commodore Junk
Cryptogram
Cruise of the Training Ship
Dean Dunham
Dingo Boys
Don Kirk’s Mine
Ensign Merrill
Eric Dane
Erie Train Boy
Five Hundred Dollar Check
For Home and Honor
Frank Merriwell’s Bravery
Frank Merriwell Down South
Frank Merriwell’s Schooldays
Frank Merriwell’s Chums
Frank Merriwell’s Foes
Frank Merriwell’s Trip West
From Canal Boy to President
From Farm Boy to Senator
From Lake to Wilderness
From Switch to Lever
From Tent to White House
From Port to Port
Gay Dashleigh’s Academy Days
Giant Islanders
Ensign Clarke Fitch, U. S. N.
George Manville Fenn.
William Murray Graydon.
Ensign Clarke Fitch, U. S. N.
Horatio Alger, Jr.
George Manville Fenn.
Gilbert Patten.
Henry Harrison Lewis.
Matthew White, Jr.
Horatio Alger, Jr.
Horatio Alger, Jr.
Victor St. Clair.
Burt L. Standish.
Burt L. Standish.
Burt L. Standish.
Burt L. Standish.
Burt L. Standish.
Burt L. Standish.
Horatio Alger, Jr.
Horatio Alger, Jr.
William Murray Graydon.
Victor St. Clair.
Edward S. Ellis.
Ensign Clarke Fitch, U. S. N.
Arthur Sewell.
Brooks McCormick.
Gilbert, the Trapper
Gold of Flat Top Mountain
Golden Magnet
Golden Rock
Grand Chaco
Gulf Cruisers, The
Guy Hammersley
Happy-Go-Lucky Jack
Heir to a Million
How He Won
In Barracks and Wigwam
Inland Waterways
In Search of an Unknown Race
In Fort and Prison
In Southern Seas
In the Sunk Lands
Jack Wheeler
Jud and Joe
Jungles and Traitors
King of the Island
Kit Carey’s Protégé
Land of Mystery
Last Chance Mine
Lieut. Carey’s Luck
Little Snap, the Postboy
Mark Dale’s Stage Venture
C. B. Ashley.
Frank H. Converse.
George Manville Fenn.
Edward S. Ellis.
George Manville Fenn.
St. George Rathborne.
Matthew White, Jr.
Frank H. Converse.
Frank H. Converse.
Brooks McCormick.
William Murray Graydon.
James Otis.
Frank H. Converse.
William Murray Graydon.
Frank H. Converse.
Walter F. Burns.
Capt. David Southwick.
Gilbert Patten.
William Murray Graydon.
Henry Harrison Lewis.
Lieut. Lounsberry.
Edward S. Ellis.
Lieut. James K. Orton.
Lieut Lounsberry.
Victor St. Clair.
Arthur M. Winfield.
Mark Stanton
Midshipman Merrill
My Mysterious Fortune
Mystery of a Diamond
Nature’s Young Noblemen
Ned Newton
Neka, the Boy Conjuror
New York Boy
Off for West Point
Old Man of the Mountain
On the Trail of Geronimo
On Guard
Paddling Under Palmettos
Perils of the Jungle
Phil, the Showman
Pirate Island
Randy, the Pilot
Rajah’s Fortress
Reuben Green’s Adventures at
Yale
Rival Battalions
Rival Canoe Boys
Secret Chart, The
Shifting Winds
Smuggler’s Cave, The
Horatio Alger, Jr.
Henry Harrison Lewis.
Matthew White, Jr.
Frank H. Converse.
Brooks McCormick.
Horatio Alger, Jr.
Captain Ralph Bonehill.
Horatio Alger, Jr.
Lieut. Fred’k. Garrison, U. S.
A.
George H. Coomer.
Edward S. Ellis.
Lieut. Fred’k. Garrison, U. S.
A.
St. George Rathborne.
Edward S. Ellis.
Stanley Norris.
Harry Collingwood.
Lieut. Lounsberry.
William Murray Graydon.
James Otis.
Brooks McCormick.
St. George Rathborne.
Lieut. James. K. Orton.
St. George Rathborne.
Annie Ashmore.
Spectre Gold Headon Hill.
Strange Cruise, A Ensign Clarke Fitch, U. S. N.
Sword and Pen Henry Harrison Lewis.
That Treasure Frank H. Converse.
Tiger Prince William Dalton.
Tom Brace Horatio Alger, Jr.
Tom Tracy Horatio Alger, Jr.
Tom Havens with the White Lieut. James K. Orton.
Squadron
Tour of a Private Car Matthew White, Jr.
Tom Truxton’s Ocean Trip Lieut. Lounsberry.
Tom Truxton’s School Days Lieut. Lounsberry.
Tour of the Zero Club Capt. Ralph Bonehill.
Treasure of the Golden Crater, The Lieut. Lounsberry.
Unprovoked Mutiny James Otis.
Valley of Mystery, The Henry Harrison Lewis.
Voyage to the Gold Coast Frank H. Converse.
Walter Griffith Horatio Alger, Jr.
War Tiger William Dalton.
West Point Treasure, A Lieut. Fred’k. Garrison, U. S.
A.
West Point Rivals, The Lieut. Fred’k. Garrison, U. S.
A.
Weathercock George Manville Fenn.
Wheeling for Fortune James Otis.
White Elephant William Dalton.
White King of Africa William Murray Graydon.
White Mustang
With Boer and Britisher
Won at West Point
Yankee Boys in Japan
Young Acrobat
Young Actor, The
Young Bank Clerk, The
Young Editor
Young Showman’s Rivals, The
Young Showman’s Pluck, The
Young Showman’s Triumph, The
Young Bridge Tender, The
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Zip, the Acrobat
Edward S. Ellis.
William Murray Graydon.
Lieut. Lounsberry.
Henry Harrison Lewis.
Horatio Alger, Jr.
Gayle Winterton.
Arthur M. Winfield.
Matthew White, Jr.
Stanley Norris.
Stanley Norris.
Stanley Norris.
Arthur M. Winfield.
Victor St. Clair.
Victor St. Clair.
 Boys’ Popular Library

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