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Privacy Law and Policy Reporter

Privacy Law and Policy Reporter (PLPR)
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Chadwick, Paul --- "After 11 September" [2001] PrivLawPRpr 49; (2001) 8(6) Privacy Law and Policy Reporter 109

After 11 September

Paul Chadwick

Privacy Commissioners are rather small in the scheme of things. But we sometimes have to ask big questions in public — even if the answers seem incomplete, temporary and inelegant. I have such a question: what of privacy after 11 September?

The reverberations of that day’s events in the US continue to be felt. Their extent is not yet known, but it seems clear that they include a consideration of the balance between two grand themes: liberty and security.

It is as well we debate any rebalancing in the open, and in a way that does justice to the grandeur of both themes. We do ourselves a disservice if we begin by confining discussion to the specifics of this or that legislative or administrative proposal for change.

Nor should we get ourselves bogged in what has been called ‘the parochialism of the immediate’.

Over time, others will speak on the theme of security and we must listen. Has anyone with even a passing interest in privacy not been struck by the extent to which the investigators of the crimes of 11 September appear to have been assisted by what you might describe as ‘everyday data’? There are cameras looking out from automatic teller machines; cameras looking down at passengers at gate lounges; and data trails left in credit card transactions, records of phone calls, rentals, and club memberships.

Think of the potential of familiar technologies to increase security — if only privacy would give way routinely. Imagine the potential of less familiar technologies, such as biometrics, to be come part of everyday life — if only privacy would give way sufficiently.

I make no predictions. I do not want to pre-empt debate on any measures that may be proposed to enhance security in Victoria. If and when proposals emerge in this jurisdiction, as they have in others, those proposals will be assessed on their merits and according to law. Compromises may be appropriate in particular circumstances.

I want only to put the value of privacy in the front of minds, and to set out three key safeguards for privacy in future debates.

We will need wide discussion of any proposal that would diminish long established, legitimate expectations of privacy. Not discussion in the ‘shock, horror’ style, nor the ‘gee whiz’ style, but accurate explanations of what it is about that precious slice of liberty known as privacy that is proposed to be traded in exchange for better security.

We will need to determine more carefully than in the past the difference between inconvenience and indignity. People might tolerate a lot of inconvenience in order to feel more secure. But dignity is elemental. Privacy’s purpose is, in part, to assert and to preserve human dignity.

We may need to consider again lessons from history about the effects of large scale surveillance and data collection on a population that knows it is happening but lacks confidence in the accountability of those empowered to do it. Great power is amassed by those who are permitted by law to gather, store and interpret personal information, with which they advise decision-makers.

We will need to ask, with some precision: who is watching the watchers?

Privacy is not a luxury or an indulgence. We may choose consciously to diminish privacy in certain circumstances — to trade it — but that is not the same as devaluing it.

We need to articulate the role of privacy as a lubricant of other freedoms. Understood this way, privacy might have a stronger start in the debates that may be ahead.

Privacy is indispensable to the practical exercise of:

The greatest mechanism of a healthy democracy is its capacity to change its mind. A democracy can debate, refine, reconsider, have second thoughts and choose differently. We know the necessary ingredients: information, ideas, dissent, tolerance and a measure of trust and confidence in the legitimacy of key institutions.

Privacy is instrumental at every stage if this mechanism is to work.

When small groups of likeminded individuals gather and organise they might prefer initially the intimacy of a small circle. Dissenters often face incomprehension, even hostility, and privacy shields them until they are ready to attempt to persuade. At that time they may seek out journalists — or journalists who are good enough may find them first.

If these relationships are to develop, they require privacy, especially when the dissenters’ information or ideas are controversial or threaten strong interests. History teaches that when freedom starts to wane, journalists are among the first to lose their privacy.

And how does a democracy change its mind if not by the gradual, perhaps reluctant, change that occurs by degrees in the privacy of the minds of many individuals? In the private zones, among family and friends, we might tentatively air new doubts about our former certainties. We might try out new views. But until we choose, we may remain reserved. Inside, we decide. Then we act and speak.

An atmosphere that fails to respect privacy can harm these subtle democratic processes. Orthodoxies outlive their usefulness for want of the challenge and debate that will either reaffirm their correctness or reveal their failings and open the way for rejuvenation.

This much is familiar from democratic theorists. Practitioners and citizens know it intuitively, even if they have not dissected it this way. But the importance of privacy as a facilitator of democratic life is less widely understood. We live in times when it needs to be better appreciated.

We know privacy’s value, so how might we safeguard it? When any proposal to diminish privacy emerges, it should routinely be tested against standards of necessity, proportionality and likely effectiveness.

But we have three other safeguards, as follows, that can be applied to any measure that would require privacy to give way to security.

Open processes, without _undue haste

Every measure should go through open processes at a speed that permits proper explanation, discussion and reflection. Secret law is bad law. Hasty law is apt to be bad law too.

Judicial oversight

Any measure authorising actions that diminish privacy should be subject to open review and supervision by the courts.

Sunset clauses

The sun always sets on emergencies. If measures diminishing privacy are said to be justified because of extraordinary circumstances, each such measure should contain within itself a provision for its automatic review and expiry after an appropriately limited period, the shorter the better. If circumstances at the time of expiry are said to remain extraordinary enough to justify renewal of the measure, decision-makers should debate that action in the open.

If at least these safeguards are applied, any measures that curtail privacy will have better prospects of being perceived as legitimate. In practice, any compromises will work better if they are understood and broadly accepted by the public. Measures that stir resentment and non-co-operation will be counter-productive, perhaps harmful.

A people monitored becomes a people paranoid.

Paul Chadwick is Privacy Commissioner in Victoria. This is an adapted text of his address to the conference ‘Privacy — Make it your business’ in Melbourne on 26 November 2001.

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