Privacy Law and Policy Reporter
The theme of this year's winter lectures reflects the society in which we live: an information society. In fact, our apparent willingness, some might call it downright enthusiasm, to embrace the new ''information super highway' may place New Zealand among the leading information societies today.
Not all social forecasts on the impact of new forms of information technology share the essentially up-beat, positive approach of earlier speakers in this lecture series. In recent years, to use the words of David Lyon (The Electronic Eye: The Rise of Surveillance Society, (Polity Press, Cambridge, England, 1994):
... the debates surrounding new technology have tended to become more sober, if not sombre. The failure of computer-based service economies to lift the world out of recession, the advent of electronic war, and the dismayed realisation that computers have a huge capacity to track the tiny details of our personal lives, have all helped foster more forbidding social forecasts.
Of all the questions raised by new technologies [says Lyon], the one that strikes [him] as being most socially pervasive is the garnering of personal information to be stored, matched, retrieved, processed, marketed and circulated using powerful computer databases. That issue is the focus of my address.
My perspective today is that of a non-official privacy advocate a self- appointed ''busybody'. Yet, many of my concerns are shared by official advocates.
The Ontario Information and Privacy Commissioner, in his most recent report, states that ''those who see privacy as a fundamental human value are constantly placed on the defensive, fighting a rear-guard action to recoup the privacy losses inflicted in the name of "progress"'.
We are witnessing [says Commissioner Wright], the steady erosion of privacy through the creep of technology. Innovations such as photo radar and call management services are being adopted apparently for good reasons, such as traffic safety or consumer convenience .... But as surveillance increases on a piecemeal basis, privacy is also sacrificed bit by bit. One day soon we could wake up and find ourselves in 1984.
What does privacy encompass? Privacy advocates see it as covering bodily (physical) privacy; territorial privacy (private space); privacy of communications; information privacy (rights concerning information about a person); and freedom from unwanted surveillance. These categories sometimes overlap. Privacy should be seen as a reasonable expectation of every person. A desire for privacy should not be interpreted as meaning that a person has ''something to hide'. People who wish to protect their privacy should not be required to justify their desire to do so.
What do I mean by surveillance? Traditionally it had a fairly narrow meaning. It usually involved various forms of policing, for example, the use of listening devices and the interception of communications, together with the shadowy activities of intelligence organisations.
These days, however, the term ''surveillance' has a very broad meaning. Today, we are talking about the collection and use of personal information in an expanding range of contexts by public and private sector agencies. I see the threat posed by private sector surveillance, for example, workplace monitoring, employee drug-testing, as near to that posed by public sector surveillance.
Surveillance is an important aspect of modern bureaucratic systems. It encourages compliance with the current social order. Surveillance must be seen as a means of social control. As David Flaherty reminds us, ''surveillance can be good or bad, depending on who does it, why it is being done, and how it is carried out' (Protecting Privacy in Surveillance Societies (1989) 12).
Why is the expansion of surveillance occurring? Who is driving it? Is it the creators of the new forms of information technology? ''Look what our new product can do to increase your efficiency and productivity'!
David Burnham in his book, The Rise of the Computer State, suggests that new computer technologies augment themselves beyond the direct control of anyone, let alone elected decision-makers. David Lyon reminds us that one of the key aspects of totalitarianism is an extreme focus on surveillance. Individuals' activities are closely monitored. George Orwell's 1984 involved a situation of total surveillance.
Advanced societies like NZ are constantly upgrading their computing capacities. This should not be interpreted necessarily that they are slipping down a slope into some form of tyranny. At the same time, however, it is essential that questions be asked and satisfactorily answered about the role of new technologies. There should be extensive public discussion and policy debate before the introduction of any new form of technology or administrative or commercial practice, which may have implications for human rights and individual privacy in particular.
The collection, storage, use and disclosure of personal information - used to occur before the advent of the computer. When do the new forms of information technology become a threat? When is the unacceptable technological threshold crossed?
In recent years the cost of processing information has dropped dramatically so that the gathering, storing and use of information on a large scale is increasingly feasible.
Australian computer scientist, Roger Clarke uses the term ''dataveillance' to ''highlight the ways that the convergence of new technologies has confronted the advanced societies with a series of very rapid changes in the quantity, if not the quality of surveillance'. According to Clarke, mass dataveillance has less to do with any specific suspicion or transaction. It is used to identify people who may be of interest to the organisation and who, as a consequence, may qualify for more focussed attention. The significant difference is that the individual does not have to do anything. Instead the person simply has to come under ''categorical suspicion', to use the words of Gary Marx, by virtue of possessing certain characteristics (Under Cover: Police Surveillance in America (1988)).
Do new forms of telecommunications permit a dramatic growth in surveillance capacity? Gary Marx certainly believes so: ''computers qualitatively alter the nature of surveillance routinising, broadening and deepening it'. He argues that the very way in which new technologies are being used today in liberal democratic societies like NZ has increasingly strong totalitarian potential.
I share Lyon's view that the ''rise of "New Right" policies within advanced societies have encouraged the growth of new surveillance technologies. On the one hand there is the emphasis on the need for there to be a "strong state"; that is, a state which seeks both external and internal security, for which new technologies provide a natural ally (54). On the other hand, the drive towards "free enterprise" paradoxically harnesses the mighty mechanisms of information technology in an attempt to control consumer behaviour' (55).
What is the political economy behind the new surveillance? What are the political, economic, and cultural processes that lead to the strengthened surveillance?
The emphasis on the need for balanced budgets in the past decade has contributed to the search for better methods of control. There has been renewed attention paid to the need to verify what are known as ''transfer payments'. In the NZ context this means primarily welfare payments. It has been seen as imperative to identify those who are entitled to the various benefits and also to identify people who are receiving them in error.
The consensus among most commentators is that increased surveillance capacity is the result of specific political and economic circumstances that encourage the use of various technological systems which invariably feature increasing capabilities. In this society, low-income people have been the more visible victims.
Electronic interception of communications Traditionally an important component of surveillance was the interception of communications. In the past it involved the interception of correspondence together with manual eavesdropping. In recent decades it has included electronic interception of communications. The police are currently seeking much broader powers to intercept communications. They would like to have the power to intercept communications of individuals suspected of being involved in serious crime. At present, under the provisions in the Crimes Act at least, they are limited to ''bugging' suspected ''organised criminal enterprises involving sixor more people' (s312A). (The Technology and Crimes Reform Bill, introduced into parliament recently by Labour MP Trevor Rogers, would dramatically extend police powers to use listening devices (cl 14))
Law enforcement information In April it was revealed that the police were proposing to buy a super- computer, costing approximately $80 million, which according to the Sunday Star-Times would give our police ''the world's most sophisticated intelligencesystem' (10 April 1994). The proposed system will be able to cross-reference names, places and dates; and identify ''persons of interest' in a street or locality where a crime has been committed. A police spokesperson while conceding that the proposed system would be able to co-ordinate all police operational and administrative systems was reportedly ''adamant it will be no "big brother". We have the Privacy Commissioner sitting alongside us in terms of development.
We are being very careful to develop something that ... doesn't create a big brother computer'. Very reassuring words for the ''merchants of gloom and doom' or as David Lyon describes us ''the postmodern paranoids'!
Ten years ago information matching while not unheard of was not seen as a major privacy issue in NZ. Today it involves the matching of personal information on hundreds of thousands of New Zealanders. Major state agencies
DSW, IRD, Customs, Education holding sensitive personal information all now have legislative authority. Previously some agencies clearly conducted information matching without that authority. The information matching programs are all subject to review on a regular basis by the Privacy Commissioner.
When is information matching justifiable, desirable, necessary? According to my colleague, Jane Kelsey, in her book, Rolling Back the State: Privatisation of Power in Aotearoa/New Zealand (1993), the ''price of retaining some social assistance at a time of entrenchment and targeting was an increase in data- matching, information-sharing and the surveillance of people's everyday lives (317). I support that analysis.
Information matching raises major concerns when it involves the comparison of personal information relating to identifiable individuals. Privacy advocates have described it as a ''mass surveillance technique', which is error-prone and threatens established values, in particular individual privacy. Canada's former Privacy Commissioner, Dr John Grace once described it as ''a far-reaching insidious threat to the way our society thinks and works'.
Proponents of information matching argue that the benefits are both financial and non-financial. Financial benefits might include the detection of error, dishonesty and fraud. Non-financial benefits are said to include the obvious deterrent to dishonesty that would occur once it is widely known that information matching is taking place; the prevention of crime; the apprehension of criminals; the reinforcement of society's moral values (for example, that welfare fraud and abuse is unacceptable); and positive gains for social equity issues such as the fair distribution of welfare benefits to those who require assistance.
Under Pt X of the Privacy Act the major State agencies which may engage in information matching are the Accident, Rehabilitation and Compensation Insurance Corporation; the Customs Department; the Departments of Justice, Labour, and Social Welfare; the Inland Revenue Department; the Ministry of Education; and the Registrar-General of Births and Deaths.
Under the Privacy Act, the Privacy Commissioner is required to conduct comprehensive reviews of all matching programmes - at intervals of not more than five years. These reviews will be a critical test of the Commissioner's effectiveness
The second half of Tim McBride's address will be in the next issue.