Taking the privacy debate public

03 March 2012 By Lawyers Weekly

As the Minister with responsibility for both Privacy and Government Accountability, I have in mind a quote from American author David Brin: “When it comes to privacy and accountability,…

As the Minister with responsibility for both Privacy and Government Accountability, I have in mind a quote from American author David Brin: “When it comes to privacy and accountability, people always demand the former for themselves and the latter for everyone else.”

The importance of both privacy and accountability are generally accepted. There is far less consensus on what those words mean.

When it comes to privacy, there is a broadly accepted idea that some things are, or ought to be, outside, and beyond the reach, of the public sphere. But even academic experts such as (US philosopher and activist) Judith Jarvis Thomson admit that: “Perhaps the most striking thing about the right to privacy is that nobody seems to have any very clear idea what it is”.


Privacy is not secrecy, although it allows people to keep things to themselves. It is not concealment, although without it nothing can be concealed. Privacy is not solitude or seclusion, although American jurists Brandeis and Warren defined it, in 1890, as the right to be let alone. Nor is it intimacy, although many of the things we keep private are indeed intimate in nature.

In the sixteenth century French writer Michel de Montaigne divided human experience into two separate spheres — the interiority of the self, and the exteriority of the world. For him, the integrity of the inner world of the self depended on the possibility of separation from the world to think and reflect. His writing crystallised the concept of a personal space that did not belong to others, to the community or to the government. The idea of privacy depends on this conceptual distinction.

Such a private, personal space may be physical — as William Pitt recognised when he wrote that the poorest man in a ruined cottage can refuse entrance to the King and all his forces — or it may be intangible, as Queen Elizabeth I acknowledged when she declared she had “no desire to make windows into men’s souls” when it came to religion.

The right to privacy was included in the Universal Declaration of Human Rights in 1948, in the aftermath of World War II, with the grotesque abuse of government records by the Nazis fresh in the minds of international statesmen and human rights advocates.

The idea of privacy as a protection of the individual from the intrusive, invasive state gained strength from the use and misuse of surveillance and data collection in totalitarian states, given memorable fictional form in George Orwell's 1984, and in Alexander Solzhenitsyn’s Cancer Ward. Solzhenitsyn wrote: As every man goes through life he fills in a number of forms for the record, each containing a number of questions ... There are thus hundreds of little threads radiating from every man, millions of threads in all. If these threads were suddenly to become visible, the whole sky would look like a spider's web, and if they materialized as rubber bands, buses; trams and even people would all lose the ability to move, and the wind would be unable to carry torn-up newspapers or autumn leaves along the streets of the city. They are not visible, they are not material, but every man is constantly aware of their existence.... [and] naturally develops a respect for the people who manipulate the threads.

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Solzhenitsyn’s description of the “chilling” effect on ordinary life of government data collection, written in 1968, predates the information age, and should serve as a warning to anyone who thinks that the chief dangers to privacy are technical.

Technological developments have made it easier and cheaper to collect information and compile dossiers on individuals, not only for those governments minded to do so,but also for businesses who find value or convenience in the collection and use of personal information.

But the single development that makes the “Panopticon society” possible — a society where, like the inmates in architect Jeremy Bentham’s model prison of 1785 — we are always potentially observed, is not the computer.

It is the growth of the modern state, with extensions into every crevice of the individual’s life, matched by the growth of corporate and commercial data banks that likewise contain extensive records of buying preferences, activities and behaviour, our health, our finances, our travel — and so on.

Today, the activities of both the public sector and the private sector raise challenges for privacy policy. A straightforward dichotomy between “private” and “public” is no longer an adequate framework for privacy in a world where the public interest and the execution of public policy depend on government scrutiny and analysis of information and data and where international commerce depends on the flow of information.

Nor does such a framework serve in an increasingly crowded and networked world where the worldwide web reaches into many lounge rooms and people frequently carry out “private” actions in “public” spaces.

Professor Alan Westin defined privacy as the possibility of choosing freely the circumstances and the extent of exposure of oneself, one’s attitudes and one’s behaviour to others.

This definition suggests that the importance of privacy and the right to privacy is not that it provides an absolute and universal barrier between the “public” and the “private”, but that it ought to be the decision of the individual citizen where that line is drawn and how permeable or impermeable it should be.

Ladies and gentlemen, an increasingly broad view of the legitimate role of government has emerged over the past century. Income redistribution through taxation and welfare, the provision of education, the pursuit of public health initiatives and the fight against climate change are just a few of the many public policy initiatives that depend on the government’s capacity to gain, analyse and deploy information — information that is often about what many people consider the “private” sphere.

As the ALRC noted in its recent report, For Your Information, many areas of research have a strong public interest basis — such as health and medical research, sociology and criminology — with a “potential to lead to evidence based policy development and significant positive outcomes for the community.”

Most Australians accept this need, and accept the use of their de-identified personal information for such a purpose, but that does not alter their perception of personal information as “private”.

The ability of the government to pursue important policy goals depends on the confidence Australians have in the security and appropriate use of the information they give to government agencies and commercial entities.

The challenge for government is not to simply concentrate on the technical issues, or on the problems we perceive in isolation, but to develop policies that reflect our concept of privacy, our ideas of the way privacy interacts with other human rights and social imperatives, which are, as the ALRC phrased it, both technology-aware and technology-neutral.

How we use, and limit our use, of technology, to both protect and limit privacy, is a choice — or a series of choices.

This is an extract from a speech given by Senator John Faulkner, at the gala presentation dinner of the inaugural Australian Privacy Awards and Medal, Amora Jamison Hotel Sydney, 27 August 2008. The full text of the speech is available at www.privacy.gov.au/news/speeches/sp11_08.html

Taking the privacy debate public
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