Australia needs to play a strong role in the international privacy crisis.
Privacy is not trivial. It is a right that is clearly enshrined in international law because it is essential to human dignity and fundamentally important to the maintenance of democratic societies. Privacy gives us the freedom to define ourselves and our relations with others. It is necessary for the development of dissent or alternative viewpoints and the creation of individual identities.
It is also important to understand that privacy is a normative right. It is difficult to define privacy because its definition is necessarily fluid. It is not an absolute right, rather it is a right that is governed by the norms of society and this has the potential to cause privacy to dissipate. It is a fundamental human right that underpins human dignity and a variety of other fundamental rights such as the right to free speech and to free association.
Understanding how and where privacy concerns exist is best achieved through an adaptation of George Orwell’s novel 1984 and its concept of Big Brother.
Big Brother is the government itself and its ability to access and use private information. The best and easiest example of this might be the operation of the healthcare system wherein a significant volume of private information is collected for the purpose of ensuring that people are able to receive proper medical assistance. However, it can be more abrasive where the government legislates that, for example, law enforcement is able to covertly survey and monitor members of society without their knowledge. An example of this level of citizen monitoring is demonstrated in the Office of the Information Commissioner’s 2012 Report on Camera Surveillance and Privacy which stated that Queensland Government agencies use more than 20,000 cameras to monitor people in public places. This number is unlikely to have decreased in the past two years.
Furthermore, at the federal level, the 2015 implementation of a data retention scheme requires internet service providers to store the metadata of Australia citizens for a period of two years and the more recent Assistance and Access Bill which increases the ability for government to access telecommunications information and require “designated communications providers” (which is an extremely broadly defined concept) to assist law enforcement without end users knowledge.
The Snowden revelations ought to make everyone at least cautious about the scope of the government’s ability to monitor and survey the daily lives of Australians. It is important to understand that we are citizens, not suspects. Indeed, Australians are even less protected than Europeans vis-a-vis mass surveillance and its encroachment into privacy given we don’t even have a constitutional right to privacy and enjoy, at most, a very weak implied right to political speech.
Australian laws cannot be readily struck down for being disproportionate to their aims, or for unduly interfering with rights that the law does not recognise. Furthermore, Australia is an enthusiastic participant in the international 5 Eyes mass surveillance partnership and we are at a disadvantage in terms of challenging such practices compared to other democratic countries. Laws which are not good enough for Europeans and their privacy and free speech rights should not be good enough for us, particularly whilst Australia’s constitutional and legal framework does not easily give us the means to challenge such laws based on the principles of necessity, proportionality and adequacy.
The second aspect of understanding privacy is the “middle brother” which corresponds to corporations and companies. The prime example of the interaction of privacy with companies is the way in which, for example, Facebook collects, uses and discloses private information provided by its users. These companies have a different prerogative to government; they want to ensure that they are maximising their ability to sell their product, whether that is via targeted advertising, understanding emotional states or by simply understanding their core-user base. This is an area that has been of particular interest to me over recent years with the rapid development of “smart” technologies and specifically the “internet of things”, given that privacy is a right that is easily dissipated. The internet of things – for example a smartfridge – is potentially an extremely convenient system. It allows you to interact with the internet and shop at the door of your fridge. However, this convenience comes at the covert expense of a direct and blatant intrusion into your private life.
As you may have guessed, the analogy being created is “Big Brother” and his siblings, the last of which is the “Little Brother” or other individuals. This is a nosey neighbour or your friend who is looking over your shoulder while you’re texting. Again, as technology progresses, the ability for this nosey neighbour to glimpse into your private life increases with the significant volume of private information that is available through social media searching and image recognition software. This too is an area where the convenience and “cool” factor can unwittingly create privacy issues. A further example of this is the use of drones. This is another awesome leap in modern engineering and technology but also has a real and direct ability for individuals to view the private lives of others without their knowledge. It is important to acknowledge that each person as an individual has an impact on their own rights. Social norms regarding the uptake and use of technology often results in an oversight of the appropriate balance between the convenience of technology and an individual’s right to privacy.
In this regard, although it is not as comprehensive as the European General Data Protection Regulation which was also introduced this year, the recent introduction of the Mandatory Data Breach Notification scheme is a positive step for Australia. In this context, it is useful to place data breach notifications in context. A breach notification is seemingly a “lawyerly term”; however, it is fundamentally important and has a much more serious consequence that what is apparent on first blush. A data breach means that someone that you did not intend to provide your identity to now has access to your identity. This can have serious ramifications.
For example, your identity may be compromised by a person with ill-intentions and used to access child pornographic material. This could result in an innocent person being charged with serious offences. While you may have the resources to challenge and overcome the charges, the process of the accusation and criminal justice system will fundamentally and involuntarily change your identity. Privacy is the right to choose who you share your identity with and thus underpins human dignity and autonomy.
Privacy is a fundamentally important and foundational right and any change to the normative existence of this right warrants serious and informed public discussion.
Angus Murray is a practising solicitor and human rights advocate. He is a Vice President of the Queensland Council for Civil Liberties, the Chair of Electronic Frontiers Australia’s Policy and Research Committee and a Partner and Trade Marks Attorney at Irish Bentley Lawyers.
This article is published under a Creative Commons Licence and may be republished with attribution.