UNSW CLE 19 July 2001 1

Privacy and Law enforcement in the on-line world

– the bigger picture.

Nigel WatersConvenor, Australian Privacy Charter Council

Pacific Privacy ConsultingUNSW CLE Seminar – eSecurity & eCrime

19 July, 2001

UNSW CLE 19 July 2001 2

Introduction

• Narrow battles vs big picture

• Incremental loss of privacy

• Regulability of cyberspace depends on architecture – (Lessig 1999)– Choice to be made– Fully informed debate or vested interests– Globalistation

UNSW CLE 19 July 2001 3

Security & Privacy

• Can co-incide– Audit trails

• Security independent of type of information

• With Personal information, tension arises– Security vs other privacy principles– Employees and customers/public

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Powers to invade privacy

• Legal entities – arguments for transparency, but powers now being used against individuals

• Business/personal distinction blurring– ABN holders

• Privacy laws have no effective limiting function in the face of other laws

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Search and Communications Interception powers

• Inconsistent approach to electronic data vs physical intrusion – why?– Eg: ATO, Centrelink ‘notices’– Even looser controls in IPP11, NPP2

• Telecommunications– Warrants for content (but not all?)– Certificates– On request

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Interception Warrants

• Progressive weakening of controls– Judges to AAT members– Named person warrants– Period of warrant– Range of offences– No of agencies– More agencies with direct access

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Computer access warrants

• Introduced for ASIO

• Proposed extension to all investigatory agencies under Crimes & Customs Acts ? (Cybercrime Bill 2001)

• Major concerns about data integrity – question evidentiary value?

• Same issue in NZ

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Application of powers

• Specific investigations vs intelligence gathering - routine surveillance, matching

• Requirement to retain records

• Best protection is destruction

• Once available – pressure for access– Census– Proposed requirement on ISPs?

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Identification?

• Pressure to identify in more contexts

• Justification ? – ID fraud ?

• Often, real need is authentication

• PKI – muddled motives and application

• Privacy issues

• Privacy Commissioner Guidelines

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Data-matching

• Reversal of onus of proof

• AUSTRAC example– Subjective?– Disproportionate?

• Tendency for subjective norms to replace objective criteria

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Conclusion

• Common theme: Control vs freedom• How much risk to tolerate?• Difficult at individual program level

– will always favour greater control• Reject technological determinism• Fall back on basic principles• No Constitutional/BoR protection• Can only question each proposal