CLA policy: Technology and civil liberties

Background

The purpose of this paper is to provide guidelines for handling civil liberties and rights for the introduction of emerging technology proposals for detailed monitoring or regulation of aspects of the daily lives of citizens, often rationalised on health, welfare, social ‘benefit and security’ grounds.

The core dilemma is how to introduce new technology to help people, while ensuring basic rights are safeguarded and freedom from oppressive intrusion or misuse of information by the private sector and the state is guaranteed.

It is essential that such technology is introduced under arrangements that are transparent and provide for appropriate control and accountability.  There should be individual or collective consultation and consent (or at least acceptance).

Principles:

  • The proposal must have substantial community benefit;
  • The proposal must minimise the impact on rights and freedoms;
  • The proposal must have a demonstrable community benefit for the loss of rights benefits; and
  • The proposal must have proper regulator protections for maintaining rights and liberties.

Context

In 2007 the Australian Government authorities, in a pilot study, commenced accessing some records of the Commonwealth Bank in order to detect welfare cheats.  It is proposed to extend the process to other banks (Canberra Times 17 May 2008).

It is easy to see this as a threat to civil liberties; but it is more realistic to see it as a conflict between civil liberties objectives.

  • Civil liberties are diminished to the extent that government prying into personal records is allowed to run amok.
  • On the other hand the civil iberties of law-abiding citizens are enhanced to the extent that the authorities succeed in limiting welfare and tax fraud.

Such conflicts are not new.  In the historic case of compulsory breath testing (now accepted, but initially opposed by civil libertarians) there was a trade-off between the right of the citizen to be able to proceed on the public roads without being stopped at random by the police and the right to be safe from being killed or injured on the roads by drivers whose reflexes and judgement are impaired by alcohol.

Technology is central to both instances: breath testing in one case and computer technology in the other.  However, the empowerment of ‘big brother’ through the expansion of computer technology is an ongoing and pervasive influence in society and raises problems of a different order of magnitude than those occasioned by breath testing.

The relevant laws can hardly be said to provide a coherent framework. The Federal Privacy Act 1988 is intended to protect personal information (essentially information that identifies an individual).  Other federal laws on matters such as freedom of information, official secrets and telecommunications affect the handling of some types of personal information.  Also, each Australian state and territory has legislation or guidelines that regulate the management of personal information in some way.  Some states and territories have specific laws about the handling of health information.  There are various privacy rules, codes and guidelines to regulate the handling of personal information.

The Australian Law Reform Commission has completed a two year review of the privacy laws and its report is now with the Attorney-General.  The main emphasis is expected to be on improving consistency, reducing complexity and bringing the private sector and public sector requirements into line.

More specifically, and possibly more or less outside the scope of the ALRC review, the Data-matching Program (Assistance and Tax) Act 1990 and statutory data-matching guidelines provide for the use of tax file numbers in data-matching processes undertaken by a special unit within Centrelink for the purposes of Centrelink, the Department of Veterans Affairs and the Australian Taxation Office.. Various other laws enable other Australian agencies to carry out data-matching activities and these are generally under voluntary guidelines issued by the Privacy Commissioner.

General Response

Cases like the present Commonwealth Bank will be more frequent in the future and will raise issues of principle and approach for considering each issue by civil liberties groups.  Generally, it should be recognise in such cases, that:

  • there are generally conflicting objectives, particularly civil liberties and rights objectives;
  • a blanket objection misses the point, sounds like hysteria and is unlikely to be heeded;
  • the continued development of technology will result in an ongoing enthusiasm to embrace and implement new approaches to meet perceived improvements in managing activities, information and services; and
  • it is important that an appropriate balance is struck so that civil liberties and rights are not progressively eroded.

A rationale approach

Civil Liberties Australia should consider each new initiative by stepping through a set of principles that will enable a rationale response to be derived and articulated.
The principles should be:

  • The proposal must have substantial community benefit;
  • The proposal must minimise the impact on rights and freedoms;
  • The proposal must have a demonstrable community benefit for the loss of rights benefits; and
  • The proposal must have proper regulator protections for maintaining rights and liberties.

Consideration of the Issue

An indicative set of questions that satisfactory answers need to be provided include:

  • What is the policy objective to be achieved by the technology?
  • What is the benefit to the community from the technology?
  • How are civil liberties diminished or enhanced by the proposal?
  • What existing/proposed law(s) can authorise/regulate the proposed activity?
  • How do the benefits of the technology out weight the loss of rights and liberties?
  • What open and transparent consultation, monitoring and reporting processes can be put in place to safeguard and protect the  public interest?
  • What limits are set on the dissemination of the information obtained?
  • Can information obtained for one purpose be used for another purpose or sold to a third party?
  • How long can the information be retained before the records are destroyed?
  • What are the arrangements to inform affected citizens of information held against them and what scope is there for the citizen to correct any errors in the information obtained?
  • What redress does the citizen have at law?

Summary

CLA should approach proposals for new and emerging technologies based on the above broad principles.

 

Civil Liberties Australia
June 2008

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