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PRIVACY AND LAW IN TECHNOLOGY
Jennifer Farrell*
A. Introduction – Why the Internet has created privacy problems.
Technological change, digitalization and the internet have led to an extraordinary
increase in the amount of personal information available and with it the potential to
totally deprive us of what we have traditionally regarded as privacy. The efficiencies
of the computer revolution have introduced insecurities in data control unthought of in
paper filing mechanisms where the inherent inefficiencies have provided security.
This has led to a transformation in privacy attitudes1 and a fear of technological
abuse.
Privacy which has protected us from being judged out of context and misdefined
appears to be almost nonexistent in a technological world “of short attention spans, a
world in which information can easily be confused with knowledge.”2 Privacy is no
longer represented by a physical space – in the “market place” or in the “home” but
by an informational profile. Privacy in the digital world represents an escape from
connection to the information exchange – inaccessibility through disconnection – a
separateness from the System. It is longer the “right to be let alone” but the freedom
to choose detachment from the digital world – the right to opt out, switch off the
computer, to set limitations on the amount of information that is released,
manipulated or passed on by those who collect it.
B. What is Privacy?
“Privacy is dynamic. Its face is constantly changing…The solutions that
we find acceptable today…may be an unacceptable or ineffectual
solution tomorrow.”3
The concept of privacy can be understood in relation to the context in which the word
is used, as well as the age. In ancient Greece the division between public and
private was related to the division in a physical sense between the home (the sphere
for slaves and women) and the market place (for free men who could engage in
trade). By the time that Warren and Brandeis analysed the right to privacy at the end
of the 19th century, the term came to mean ‘the right to be left alone’ and to be safe
from intrusion. In the internet era it can again be understood in the context of public
and private spheres, however not in a physical sense as much as in the sense of
connection or disconnection from technology.
Privacy has been defined as “the interest that individuals have in sustaining a
‘personal space’, free from interference by other people and organisations.”4 There is
no general right to privacy at common law. It has been defined as “the interest of a
person in sheltering his or her life from unwanted interference or public scrutiny.”5 A
lack of precision in defining the concept of privacy has been recognised by the Chief
Justice of the Australian High Court, Gleeson CJ, in Australian Broadcasting
Corporation v Lenah Game Meats Pty Ltd6. He explained at [42] there is “no bright
line which can be drawn between what is private and what is not”. The foundation of
what is protected in relation to privacy he understood as “human dignity” because if
the information was disclosed it would be “highly offensive to a reasonable person of
ordinary sensibilities”.7
Privacy in the context of Cyberspace is concerned with informational privacy and the
privacy of communications. As Alan Westin has explained it is:
8“[t]he claim of individuals, groups, or institutions to determine for
themselves how, when, and to what extent information about them is
communicated to others.”
The existence of a vast amount of information in databanks that is linked and
integrated “implies that society has a right to surveil its subjects and to define
individual identities separate from the inherent nature of personhood.”9 The creation
of national identity systems, in particular, “demeans the political values of identity by
substituting ersatz-identities for identities based on personhood.” This concept has
been expanded by Justice Douglas in United States v White10 who in his dissenting
judgment referred to the philosophy of privacy underlying the “unreasonable
searches and seizures” in the Fourth Amendment to the US Constitution and the
analysis of Ramsay Clark.11 Privacy was understood by Clark to be the basis of
individuality. He explained that solitude allows the personality to develop by
reflection and self-examination without the influence of “uncontrolled external social
stimulations”. The invasion of this privacy “demeans the individual” degrading people
and allowing people to degrade each other while limiting “opportunities for individual
fulfilment and national accomplishment.”
The expectation of privacy is important psychologically, sociologically, economically
and politically, so that people feel free to behave and associate with others, to
innovate and speak freely.12 As Sir Zelman Cowen wrote in 1969:
“A man without privacy is a man without dignity; the fear that Big
Brother is watching and listening threatens the freedom of the individual
no less than the prison bars.”13
It is however, not simply Big Brother who is watching. As Daniel Solove has
explained the Orwellian totalitarian metaphor has limits. He views the Kafka dystopic
vision encompassing bureaucratic decision-making processes as more threatening
because of the “web of thoughtless decision made by low-level bureaucrats,
standardized policies, rigid routines, and a way of relating to individuals and their
information that often becomes indifferent to their welfare.”14
The unrestricted flow of information over the internet of vast quantities of data are
forcing us to redefine what privacy is, what information we need to control and how
we are going to control it.15
C. Threats to Privacy?
1) Surveillance
Surveillance has been described as “the greatest leveller of human privacy ever
known”16 and by Roger Clarke17 as “one of the elements of tyranny”18. Its main
purpose is to collect information or data about individuals or groups. People can now
be watched through their records, transactions and related physiological features.
“Dataveillance”19 is inherently intrusive and ‘threatening’ and is often arbitrary.
Application of new technologies to data collection, in both the private and public
sphere, is increasing the quality and quantity of the material while decreasing the
cost. Therefore surveillance to an extent not even imagined in 1984 has been made
possible by the use of techniques such as sniffers, biometrics20, saliva scans, low
energy wave cameras, odour and universal sensors, vein maps and T-ray cameras.
Even colour laser printers can play a role in surveillance. Some printer companies
encode the serial number and the manufacturing code of their colour printers on
every document the machines produces. This enables them to be used to track
counterfeiters. The distributors obtain information about purchasers when the printer
is sold and this is maintained in a database. The purchaser’s identity is associated
with the serial number and the machine and this enables the documents printed to be
traced to the purchaser of the printer.21
The FBI custom-built internet surveillance software, DCS-1000 (originally called
Carnivore because it could get at the “meat” of suspicious communications), was
designed to sift through all traffic going through a particular ISP network, capturing
considerably more information than using traditional devices on land-line phone
systems. It was viewed by the Electronic Frontier Foundation22 as having the
“potential to turn into mass surveillance systems” by “over collection of personal
information” thereby lowering individual’s expectation of privacy.23 This program has
been abandoned in favour of the use of commercial surveillance software.24
Pervasive “privacy-destroying technologies” are available for governments and for
millions of people throughout the world. Since the first use of digital cellular phones
in the early 1990s mobile phones have become widely used. These mobile phones
have recently become more invasive. The addition of cameras in these phones was
supposed to have been introduced to enable professionals to take family photos with
them when travelling. However many other uses have been found for the camphone,
both beneficial and invasive.
Nokia has estimated that there will be over half a billion camphone25-weilding people
by the end of 2005. Almost any image can be captured. Less than an hour after the
London double decker bus was blown apart on 7 July 2005, an image taken with a
camphone was available on the internet. Camphones have also been used to take
pictures of women on Sydney beaches26, capture private picture of celebrities, used
for industrial espionage27 and it has been reported that one mobile phone was used
by the owner to send photos of his suicide to his former girlfriend28.
Websites can create surveillance problems because they collect information about
the user and their computers from web forms, cookies, web beacons, web server
logs and sometimes by adding spyware.29 Most of these methods can be controlled
by the user if care is taken not to disclose sensitive information and cookies settings
are adjusted to manage or decline all of them. Spyware presents a more difficult
surveillance problem. According to Gartner analysts, John Girard and Mark Nicolett:
“Spyware has evolved from being an occasional nuisance to something
that wastes IT user and technical support resources, and compromises
the integrity of corporate systems, applications and data.”30
Anywhere between 67% and 90% of personal computers were estimated to be
infected with spyware in 2004.31 Almost 80% of IT professionals believe that
employees do not act safely online and introduce spyware to company computers by
opening unsolicited emails and attachments and downloading malware32 from
websites by surfing dubious websites.33 Some of the malware is distributed by adsupported
software which is widely distributed on the internet. This software can be
used by companies to sell products and to support the website or it can be used to
collection information. CoolWebSearch is an example of adware that hijacks
homepages, changes browser settings, adds pornography links to the list of
favourites, deposits large numbers of files throughout the user’s computer and
triggers endless pop-up ads on users computers.34
2) Data Mining
“The internet is a data miner’s paradise”35
The internet provides an enormous, relatively current database perfect for data
mining36. The increases in computer speed, the use of parallel processing which
runs similar algorithms on different parts of the data and the adaptation of statistical
algorithms has made data mining a powerful business tool. This process is also
known as “knowledge discovery in databases” or the “nontrivial process of identifying
valid, novel, potentially useful and ultimately understandable patterns in data”37. It
uses complex algorithms, artificial intelligence, neural networks and genetic-based
modelling to discover unknown facts in a database and answer questions no-one
knew to ask.38 The computers search for hidden patterns and make predictions with
minimal intervention.
Data mining involves the application of a number of processes once the data is
organized into aggregations or data warehouses. The data is “cleansed” by the data
manager who discards unreliable information. Clustering then divides the database
into homogenous sub-groups or clusters according to the patterns in the data itself.
Then descriptive and predictive inquiries are made which describe the data as it is
and future behaviour is predicted. The patterns of variables that usually associate
with each other are discovered from the application of rules of sequential pattern
discovery or similar time sequence discovery examining the links between sets of
data.
Data mining is used for the detection of fraud and as well to promote customer
service. Online advertising makes use of customer profiles with tailored ads for every
customer. It is the selectivity of the data that threatens privacy. The group selected is
pushed into a new market to purchase products in which there was no initial interest.
It leads to intrusion through the use of unsolicited emails, manipulation where
profiling has allowed hidden marketing with advertisements tailored for every
customer according to specific profiles and discrimination by ignoring sections of the
market.
The intrusive nature of data mining selectivity is illustrated by Tal Zarsky in his article,
“Mine Your Own Business!” by the use of hypothetical customers, such as Mr Orange
who purchases groceries over the internet but has recently stopped buying
cigarettes. To enable the retailer to sell more cigarettes, Mr Orange finds the web
site he visits for shopping presents cigarette ads to him and “complementary”
cigarettes arrive in his grocery order. Mr Black pays high life insurance premiums
because he has had two recent heart attacks. Data mining by an employee of the
insurance firm reveals his physical condition and this information is sold to his
employer, leading to his dismissal.
The reality of these hypotheticals can be seen in Australia in the recent case of
Rebecca Hartford39 who three years ago received a letter from her insurer refusing
her request to increase her death and disability insurance because her insurer
discovered she had haemochromatosis40. This information could have been passed
on under Australian law to a potential employer or relatives or anyone. It led to a call
for the federal government to introduce laws to protect genetic privacy41.
The commercial exploitation of medical databases and the associated privacy
concerns can be illustrated by the establishment in Iceland of a central database with
tissue samples and genetic information by a private company, deCODE Genetics42.
The company has analysed data from over 100,000 volunteers (50% of the adult
population) together with the genealogical data linking the entire present-day
population stretching back over 1,100 years. The data was mined to trace inherited
components of a disease, pinpointing the key disease genes and specific markers
within the genes. The company obtained a licence from the government to build the
data base. This licence has been challenged in Iceland’s Supreme Court on the
basis that it does not comply with the constitutional guarantee of “freedom from
interference with privacy, home, and family life” (Article 71)43.
Serious breaches of privacy in medical records was exposed in 2003 when the
private medical records of over 13 patients were inadvertently posted on the St
Vincent’s Hospital website. Sensitive information relating to mental illness and HIV
status were revealed.44 There are, however, considerable benefits to be gained by
maintaining these electronic records including reduced cost of research by the
avoidance of duplication in testing and the application of the information to screening
and preventative health measures. Professor Colin Thomson has expressed the
view that researchers are finding privacy regulations obstructive to medical research
and called for streamlining of privacy legislation to avoid delays such as those faced
by scientists in a Victoria study of trauma treatment in gaining access to data from
140 sources.45
Once data has been collected the problem arises how this information is to be
managed, secured and used in the future and more importantly, who will have control
over it. The data itself may well be useful for research and provide enormous public
benefit but what also has to be considered is the cost to the individual, particularly
the invasion of privacy from the accidental or deliberate disclosure of private
information.
3) Profiling
Profiling is the recording and classification of behaviours46 through the aggregation of
information from multiples sources to build comprehensive profiles on individuals.
These profiles can then be used to predict behaviour, to target individuals for
specialized messages, instructions or treatment, sell products, and isolate groups
that present security threats to society. Diagnostic profiles exist rather at the
intersection of actual and virtual worlds.”47 Generally decisions are made about
individuals based on their computerized profile alone.48
There are many forms of profiling, depending on the focus of the information and
target group. Some examples include commercial and government profiling to target
groups most amenable to certain products and services, racial profiling directed at
suspects or groups because of their race, or specific medical profiling such as DNA
profiling used by Interpol as an investigative tool.49
In the process of profiling, individuals are divided into groups with categorized
subgroups. In commercial profiling these can include such groups as “Affluentials” –
Young Influentials, New Empty Nests, Boomers & Babies, Suburban Sprawl, Blue-
Chip Blues); “Rustic Living” – Blue Highways, Rustic Elders, Back Country Folks,
Scrub Pine Flats, Hard Scrabble or “Urban Cores” – Single City Blues, Hispanic Mix,
Inner Cities.50 The profiles can be purchased at moderate amounts and they are
often bought and sold over the internet indiscriminately with insufficient regard to
privacy or security of the information. They can be of considerable commercial
benefit to direct marketing organizations, such as Dunhill International Lists Co. Inc.
Profiling can target any individuals and is used by business and governments alike.
The US military began creating a database of over 3 million high school graduates
and close to 5 million college students in 2002 to target potential recruits.51 The
database contains information on social security numbers, grade-point averages,
email addresses and ethnicity. Privacy groups have shown concern that such
sensitive information would be controlled by a private firm and possibly more
vulnerable to misuse.
Problems with profiling can arise from errors in the data collected, the way it has
been aggregated or the manner in which it is applied. Privacy problems can also
arise from insecurity in databases from inadequate protocols. The LEAP52 database
used by the Victorian police for their investigations was discredited by the release of
some 20,000 pages of confidential information on hundreds of people, including
criminals and victims.53 The government’s response was to create a new position,
Commissioner for Law Enforcement Data Security, to supervise the police computer
system. Thus indicating that technological solutions alone are rarely sufficient to
provide adequate privacy protection.
Racial profiling has created special problems following the terrorist attacks in the
USA on 11 September 200154. Investigation focussed on foreign nationals from
middle eastern countries, particularly on young males who had recently entered the
US from countries linked to terrorism. The USA Patriot Act introduced in September
2001 made surveillance and the collection of data easier, as well as aggregation and
profiling. While the Chief Deputy Attorney General, Peter Siggins, conceded that
ethnic identity should be combined with other factors exposed through investigation
and analysis to avoid disparate treatment of all middle eastern men, he also
concluded that:
“Protection is going to have to be accomplished through infiltration
and surveillance, so all of us have to get used to new levels of
government intrusion.”55
4) Emails
“Email exemplifies the empowering capacity of the Internet, virtually
abolishing spatial and time constraints on communication.”56
Email is one of the most vulnerable, permanent and public forms of communication
while appearing to the user seductively private and secure. It combines “the
intimacy of the telephone with the infinite irretrievability of a letter”.57 Emails can be
much more difficult to destroy than letters, although companies such as Liquid
Machines58 and ZipLip59 offer secure messages by automatically encrypting
information and Webroot Software Inc60 provides software like Window Washer and
Spy Sweeper to assist in security management. Many people write emails informally
and with little thought. Emails can be forwarded to thousands of addresses
intentionally or unintentionally. Unless encrypted, they are exposed to surveillance,
hacking, spam and phishing, misinterpretation and manipulation.
The misplaced trust in email security has been shown in many high profile cases
such as the 1991 Rodney King case where an email message sent by a Los Angeles
police officer, stated, “Ooops! I haven’t beaten anyone so bad in a long time”.61
Recently Justice Wilcox in the Federal Court of Australia in Universal Music Australia
Pty Ltd v Sharman License Holding Ltd 62 concluded that he could not rely on the
expert witness, Professor Ross63, after email evidence was submitted which showed
a solicitor for Clayton Utz had crossed out a sentence in his report and suggested a
substitute. Professor Ross left the solicitor’s words in the draft and replied to the
solicitor, “…But if you say it is so, then fine by me”. This has raised serious
questions about the preparation of expert witnesses after Justice Wilcox found at
[231], “Professor Ross was prepared seriously to compromise his independence and
intellectual integrity.”
Two additional examples illustrate some of the problems that follow when private
information is being judged out of context and are subject to “overly intrusive forms of
social scrutiny”64. The first concerns Professor Lawrence Lessig65 who had
downloaded Microsoft’s Internet Explore hoping to win a PowerBook in a contest.
When he discovered his Netscape bookmarks had been erased he sent an email to a
Netscape acquaintance quoting a Jill Sobule song, “Sold my soul, and nothing
happened.” This email was produced in 1997 during the Microsoft antitrust dispute
after Judge Thomas Penfield Jackson had chosen Lawrence Lessig to advise him as
a “special master”. Microsoft claimed Lessig was biased and he resigned. The email
had been taken out of context. He resigned for technical reasons rather than
because of the contents of the email. What was most disturbing for Prof Lessig was
that he was not given the opportunity to explain the truth. According to Jeffrey
Rosen, Lessig was neither biased nor interested in listening to Jill Sobule but prefers
listening to Gregorian chants. Rosen’s comment was that “once the backstage
curtain is lifted, Lessig and those who know him can only put the information in
context by revealing even more private information…[which]…must be earned by the
slow, reciprocal sharing of personal information,…[leading]…to greater intimacy,
understanding, and trust.”66 This example also illustrates the dangers of accepting
the “free” offer, the giveaways and prizes in exchange for permission to track and
monitor. This Jeffery Rosen regards as “about as rational as allowing a camera into
your bedroom in exchange for a free toaster.”67
The second example concerns two legal secretaries at the Sydney offices a large law
firm68 Emails were exchanged between two employees concerning a missing
sandwich of “ham, some cheese slices and two slices of bread”. The subsequent
emails included more pointed accusations about one being a dumb blonde and the
other “Miss, Can’t Keep A Boyfriend.” The emails began to circulate throughout the
office after someone clicked the “reply all” button. Soon the conversation had been
forwarded to many lawyers and investment bankers in Sydney and Melbourne and
eventually to the inboxes of Allens’ partners. The conversation should have
remained private. There was no “backstage area” to protect these individuals from
“the burden of justifying differences that no one in a pluralistic society should be
forced to subject to communal inspection and debate.”69
Spam or unsolicited, junk email is usually seen by those receiving it as a privacyinvading,
expensive productivity drain. It is a difficult problem to solve because
spammers invent new techniques to overcome technological defence mechanisms.
A former spammer, Scott Richter, settled for $US7 million after sending out over 20
billion spam messages in a year70. It takes services such as Tumbleweed Dynamic
Anti-Spam produced over 500 new rules a day to stay ahead of creative spammers.71
It has been reported recently that spam volumes are declined due to effective filtering
programs by companies such as Postini72, a leading provider of email security
however phishing73 has been increasing with over 19 million recorded in July 2005 of
14 billion emails processed. Nevertheless, spam remains a significant problem with
estimates of cost of lost output at about US$50 billion worldwide and with about
US$3 billion being spent on anti-spam technology.74
A Phishing scam is one that is sent by email and is a form of online identity theft
using technical tricks and social engineering75 to steal personal information,
particularly financial data such as bank account details, passwords, user names and
credit card numbers. Because phishers hijack well known bank, ISP or credit card
company’s web sites, they can often be very successful. The link provided in the
email takes the recipient to a counterfeit website designed to look like the actual site.
Information entered into the counterfeit website is routed directly to the phisher. The
usual request is for the online customer to verify identity and passwords and arrives
in the form of an email from people such as “Bakeline D. Flaked” or sometimes more
believable addresses as “custservice”. The Anti-Phishing Working Group76 reported
that the country hosting the most phishing websites in June was the United States
with phishing report increasing from 6,957 in October 2004 to 15,050 by June 2005.
The financial services sector was the most targeted industry accounting for almost
91% of attacks. There is also a trend to implement automated phishing systems
using trojaning77 methods with a generic keylogger or crimeware. Some examples
include mistyping a popular domain name and being directed to a counterfeit web
site with malicious code that sends crimeware to a computer or the use of search
engines which automatically download crimeware simply by searching.
It was estimated by Garner Inc78 that phishing attacks on 57 million in 2003 cost over
$1.2 billion. InternetPerils Inc has developed a software program known as
PerilScope to try to control phishing by using an early warning system that finds
computers used to launch attacks. It is like“long range radar for cyberspace”79 with
active visualization used as an investigative and predictive tool.
While email is therefore “empowering” for users it is also has the capacity to expose
private information in a way unimagined in the pre-internet era.
5) Identity Theft
One of the most dangerous threats to privacy comes from identity theft and the use
of spyware to secretly collect confidential information, usually without the victim
knowing what has been taken. Theft of identity in relation to the Internet is the theft
of information, in particular, financial information, for the purpose of committing fraud.
Between 1998 and 2003 over 27 million American were victims of identity theft.80
The spyware software gives access to everything done online, including passwords,
usernames, shopping purchases and emails. The spyware is installed remotely
without physical access to the computer. The software can arrive via email or by
“drive-by downloads”. When certain websites are visited the software hijacks the
user’s homepage and search engine and installs pop-up generators.81 Tax file
numbers and Medicare numbers can be used to take advantage of government
benefits, purchases can be made on credit cards, bank accounts opened and loans
taken out.
Identity theft is reported by the National Criminal Intelligence Service in London to be
“the fastest growing crime in the world” with costs in Australia of more than $1 billion
a year.82 It has become such a problem that Dr Harold Kraft recently founded
MyPublic Info, Inc83 to provide identity theft prevention tools and data checks of
publicly available database records84. The company provides a product called Public
Information Profile (PIP) for proactive identity management at a cost of $US79.95 to
check eight major areas, including real estate, criminal records and professional
licenses.
The 2005 research report in the US by the Better Business Bureau and Javelin
Strategy & Research indicated that identity theft is more prevalent offline than online
and those managing their financial activities online are able to provide earlier
detection and experience lower levels of financial loss – an average of $551 online
and $4,543 offline.85 However, the banking sector is concerned with the decline in
take-up rates for online banking, blaming the security threats, especially the
increased sophistication and complexity of more recent criminal activity. The earlier
hoax e-mails in ‘pidgin’ English have been replaced with believable content and even
hoax security warnings.86
6) Legislation increasing security and the use of ID cards
The prevalence of acts of terrorism from 2001 to the present day has led to
introduction of restrictive security legislation by governments in countries such as the
US, UK and Australia. This security legislation is inherently invasive and as such
raises serious questions about the maintenance of an acceptable balance between
security and individual privacy.
In Australian this legislation has included: Border Security Legislation Amendment
Act 2002 (Cth), Security Legislation Amendment (Terrorism) Act (Cth), Criminal Code
Amendment (Anti-Hoax and Other Measures) Act 2002 (Cth), Criminal Code
Amendment (Suppression of Terrorist Bombings) Act 2002 (Cth), Criminal Code
Amendment (Espionage and Related Matters) Act 2002 (Cth), Criminal Code
Amendment (Offences against Australians) Act 2002 (Cth), Criminal Code
Amendment (Terrorist Organisations Act 2004 (Cth), Anti-Terrorism Act 2004 (Cth),
Anti-Terrorism Act (No 2) 2004 (Cth), Crimina Code Amendment (Terrorism) Act
2003(Cth), ASIO Legislation Amendment (Terrorism) Act 2003 (Cth), Suppression of
the Financing of Terrorism Act 2002 (Cth), Telecommunications Interception
Legislation Amendment Act 2002 (Cth), and the Telecommunications( Interception)
Amendment Act 2004 (Cth). In commenting on this legislation the Commonwealth
Attorney-General stated:
“The Government’s legislative response to terrorism has strengthened
and reinforced the democratic processes so vital to both our national
and human security.”87
The real cost of the strengthening of security is often loss of privacy. Without the
provision of safeguards, such as judicial review and a bill of rights, there is no
guarantee that strong democratic processes will be retained.
Linked to the war against terror is the proposal to introduce national ID cards to
increase security by enabling the holder to be identified and authenticated. A
national database of biometric data including fingerprints, palmprints, eyescans or
DNA would be required. This would have numerous benefits but would however
challenge data privacy and protection issues. In Europe identity cards are common,
some used voluntarily as in France and Portugal, some compulsorily as in Germany
and Spain. The use of ID cards has been seen by the UK government as a significant
weapon to fight identity theft, illegal immigration, and criminal behaviour. There is
concern that there will be ‘data creep’. An ID card that begins as “an identity
management infrastructure ends up as an all-purpose database for controlling
citizenry.”88
The Australian Privacy Foundation in July 200589 warned of the problems with the
introduction of a national ID system, in particular the limited effectiveness of such a
card unless it was part of a “massive and complex system featuring a centralised
database”. Such a system would be vulnerable to hacking, manipulation and
corruption, high costs, public opposition, the universal and unique personal
identification number (UUPIN) could be used to “index, link, track and profile our
movements, transaction and personal affairs, combining records in large scale and
routine ways, not currently possible” now.
The impact on privacy would be profound. As John Howard stated in 1987 in
opposition to the Australia Card:
“the assumption of the Australia Card legislation is that every Australian
is a cheat…it involves establishing a level of intrusion of a draconian
kind into the day to day activities of many people.”
As Prime Minister of Australia, John Howard is now facing similar arguments to
oppose the current proposal for the introduction of ID cards. These ID cards which
link digital dossiers to enormous cross referenced data bases have the potential to
expose individual informational privacy through security lapses and technological
weaknesses.
D. Privacy Protection
Privacy and the demand for readily accessible information are conflicting issues in
the compilation of centralised electronic databases. Some solutions to these
problems can be found in the education of internet users, in the use of newer
technologies and in the application of specific privacy provisions in legislation.
1) Education & Technology
…the most effective way of controlling information about oneself is
not to share it in the first place.” 90
When information must be disclosed vigilance about the content of that information
can minimize the invasion of privacy. Regulation in e-commerce and legislation will
be not be successful in protecting privacy unless users take charge of protecting their
own privacy by disabling cookies, checking web site privacy policies and using
firewalls and anti-virus software. No legislation will protect consumers who freely
divulge their personal information or leave doors unlocked. Internet users can limit
the amount of personal data given to businesses and government bodies, protect
passwords, maintain updates for applications, shred sensitive files, carefully read
privacy policies of web sites and refuse to complete warranty cards, or purchase from
telemarketers and catalogues. The success of social engineering by spammers and
phishers can be limited by careful consideration of incoming mail and
unsubstantiated requests for information.
According to David Bell, CEO of the Australian Bankers’ Association (ABA), “All
banks are working on educating customers about threats. That activity is now
feeding back into the bank with customers now much more likely to report activity
they consider suspicious.” Therefore education is seen as the critical first line of
defence.91
Technological solutions such as encryption can contribute to privacy protection. One
of the internet standards for email encryption, Pretty Good Privacy (PGP), is free
software which can be downloaded from the Massachusetts Institute of Technology
(MIT) web site.92 This is a high-level encryption program and cannot be defeated by
standard code-breaking methods. It has a public key and a private or secret key.
The public key allows encryption and is available to email senders but the private key
is kept secret and allows for decryption of the message encrypted with the public key.
One-way encryption programs are also available93 and are suitable for infrequent and
non confidential messages. Other basic technological solutions include the use of
anti-virus, anti-spyware and anti-spamware.
A technological and legal framework designed to improve privacy on the internet and
which entitled individuals to ownership of personal information was put forward in
199894. The aim of this proposal was to protect individual privacy while supporting
electronic commerce and providing different privacy choices. Autonomous Computer
Contracting Privacy Technology guidelines (ACCPT) promotes awareness and
enables users to negotiate privacy preferences with websites. It supported the
Platform for Privacy Preferences (P3P) sponsored by the World Wide Web
Consortium (W3C).95 The proposal is intended to redefine what information should
be private within a context-sensitive framework, providing a new understanding of
“’public’ and ‘private’, depending on who has access to the information, how it is
used, and how much control the individual has.
2) Law
“Political, social, and economic changes entail the recognition of new
rights, and the common law, in its eternal youth, grows to meet the
demands of society.” (“The Right to Privacy”: Warren & Brandeis,
Harvard law Review Vol IV Dec 15 1890 No 5)
Legislative response to privacy threats have been piecemeal and fragmented, even if
extensive, with governments trying to maintain a balance between the provision of
privacy and the maintenance of security and free speech.
The universal principles of fundamental rights in Art 17 of the International Covenant
on Civil and Political Rights relates to the privacy of individuals and provides:
“1. No one shall be subjected to arbitrary or unlawful interference with
his privacy, family, home or correspondence, nor to unlawful attacks
on his honour and reputation.
The achievement of this ideal through legislative change has been extremely difficult.
In the US privacy law can be traced to 1890 to the influential article, “The Right to
Privacy” by Samuel Warren and Louis Brandeis which was written in response to the
impact of the development of the new technology of photography and of the print
media. By 1960 four distinct torts could be recognised: intrusion upon seclusion;
public disclosure of private facts; false light and appropriation. Privacy protection is
also safeguarded by the First, Fourth and Fifth Amendments to the US Constitution.
Over twenty statutes were passed from the 1970s to the present day to deal with
specific privacy problems.
The weaknesses in US Privacy Law could be attributed to the collision between the
expectation of “information, candour, and free speech” and the expectations of
privacy. Since 2001, laws such as the Patriot Act have been passed to provide
security from terrorism. These laws also collide with privacy protection as intrusion is
essential for their effectiveness. Some of the provisions of the Patriot Act allow for
instant police access to credit reports, new authority to compel information from
Internet Service Providers and limited judicial oversight of surveillance. Perhaps as
Al Gore has suggested, “We need an electronic bill of right for this electronic age.”96
In Europe the legislation has been more successful in introducing comprehensive
and effective privacy protection. Article 8 of the European Human Rights Convention
protects the right to privacy and the general provision can be found in the European
Privacy Protection Directive (1995). Many European countries have adopted strict
data protection laws. Germany has one of the strictest in the European Union. It
covers the collection, processing and use of personal data. The “right of
informational self-determination” which is limited by the “predominant public interest”
was acknowledged by the Federal Constitutional Court in a case in 1983.97 The Court
considered that a society in which the people are under permanent technical control
is unconstitutional and harmful to liberal democracy. It also held that every individual
has the right to know and to determine which personal data is processed and how it
is used. Dr Thilo Weichert, the Deputy Privacy Protection Commissioner of
Schleswig-Holstein at a conference in 2000 in discussing the German legislation,
nevertheless stressed the importance of public consciousness of the defence of civil
liberties in the public sphere and saw democratic discussion as precondition for the
defence of privacy.98
Australia, like the United States, has had limited success in providing comprehensive
privacy protection. While in the US fundamental rights have been related to privacy
protection under the American Constitution, in Australia there is no constitutional right
to privacy and no bill of rights. Julian Burnside QC commented recently that the
Australian Security Intelligence Organisation Legislation Amendment Act 2002
involves “significant erosion of ordinary civil liberties” and that “now more than ever it
seems necessary” to entrench fundamental rights and freedoms in law99. The
Privacy Act 1988 (Cth) and similar State legislation provide some, if not
comprehensive protection.
In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA
63, the High Court of Australia considered whether Australian law recognises a tort of
invasion of privacy and its relevance to the implied freedom of political
communication under the Constitution.
This case concerned an application for an interlocutory injunction to restrain the
broadcasting of a film on a “brush tail possum processing facility” which showed the
“stunning and killing of possums” and was to be included in a program, “7.30
Report”.100 Gleeson CJ considered at [41] that, “the lack of precision of the concept
of privacy is a reason for caution in declaring a new tort…”. Further, he held at [43]
that “There is no bright line which can be drawn between what is private and what is
not.”
He regarded that the law of breach of confidence provided sufficient remedy in this
case, although considered at [54] that “the reference to the gratuitously humiliating
nature of the film ties in with the first of the four categories of privacy adopted in
United States law, and the requirement that the intrusion upon seclusion be highly
offensive to a reasonable person.”
Kirby J at [189] chose to postpose any determination of whether an actionable wrong
of invasion of privacy exists in Australian law. Callanin J at [323] considered that
“Any principles for an Australian tort of privacy would need to be worked out on a
case by case basis in a distinctly Australian context.”
By 2003 some glimmer of hope for the recognition of a right of privacy emerged in
Grosse v Purvis [2003] QDC 151 where it was held that a common law right of
privacy existed in the circumstances of this case. Justice Heerey in Kalaba v
Commonwealth of Australia [2004] FCAFC 326 considered that the circumstances of
any claim would need to come within the four categories as determined by the US
Courts.
It appears therefore that some progress towards the recognition of the rights of
privacy has been made but this is threatened by the urgent demands for increased
security.
E. Solution – Disconnection?
Is disconnection the only solution when we appear to have lost so much control over
our private information?
When discussing the security and privacy of computers, Bruce Schneier considered:
“The only secure computer is one that’s turned off, locked in a safe, and
buried twenty feet down in a secret location – and I’m not completely
confident about that one, either.”101
Similarly J J Luna’s instructions for removing private information from a computer’s
hard drive states:
“Sand the surface of the disk with a belt sander, melt it down, or
hammer it into tiny pieces and then feed them slowly into a fast-moving
river.”102
Drastic destructive measures provide some protection from software such as
Guidance Software’s EnCase Forensic edition which can search for deleted files. It
is used by police departments and organizations such as the FBI. Luna does,
however, offer to provide privacy protection by teaching us to become invisible. He
advises using pseudoanonymous and anonymous remailers103, not using wireless
networks or file sharing programs, using a notebook computer with a removable hard
drive, firewalls and antivirus software and never entering your correct address, phone
number or other personal details when registering your computer. Luna’s book also
offers to provide “a step-by-step guide to hiding assets, identity and your life.”104
Unless we disconnect from the System, the alternative appears to be to “surrender to
technological determinism”105 and accept the transparent society and Scott
McNealy’s advice:
“You have zero privacy. Get over it”.106
Perhaps the analysis of Professor Froomkin107 holds more hope when he stated in
2000 that “all is not lost – yet”.108 He considered that “despite the warnings of
information privacy pessimists” and “the rapid deployment of privacy-destroying
technologies by governments and businesses”, which threaten to make
“informational privacy obsolete”109, there is a great deal that the law can do,
particularly to regulate data collection, retention and use. This legal response
together with a social response “that is at least as subtle and multifaceted as the
technological challenge”110 will ensure that information privacy is maintained. Jeffrey
Rosen also considered in 2000 that “the battle for privacy must be fought on many
fronts – legal, political and technological – and each new assault must be vigilantly
resisted as it occurs.”111
Daniel J Solove writing more recently has not found the solution in legislation
because he sees that “the law still harbours conceptions of privacy that are not
responsive to the realities of the Information Age.” 112 His solution lies in the
architecture of the internet where “a particular social structure” needs to be
established “that ensures individual participation in the collection and use of personal
information and responsibilities for entities that control that data.”113 The concept of
architecture is used in a broad sense, similar to its application by Lawrence Lessig, in
describing computer code and the design of information systems. The internet within
this concept has a design that affects the way people communicate, the way data is
transferred and the extent of privacy. Architecture in this sense can influence human
behaviour, attitudes and interactions and play “a profound role in the structure of
society.”114
F. Conclusion
An ethical, liberal and pluralistic society is one that should provide “backstage”
private space where hyperbole, rich varieties of social behaviour and attitudes are
free to develop without fear of censure. If there are to be alternatives to
disconnection from the internet, a ‘rigorous and wide ranging debate’ is needed about
the role of privacy as a ‘fundamental part of the fabric of society’115 and further legal
and “non-legal mechanisms for discouraging privacy invasion”116 explored. Privacy is
important – we don’t have to accept its demise.
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