Intellectual Property: Setting the scene for the 21st century:
- What is privacy? Why is it important?
- Challenges for privacy in the electronic environment
- Legislative and policy responses
- The way forward
1. What is privacy?
Privacy is notoriously difficult to define, more often noted in its absence than in its presence. Justice Louis Brandeis of the US Supreme Court 1890 defined privacy as: "the right to be let alone"
"Privacy is the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others."
Alan Westin, 1966
Notes that there is a constant internal adjustment process for each individual member of society as he or she balances the desire for privacy with the desire for disclosure and communication of him/herself to others. Pressures: curiosity of others and processes of surveillance that every society sets to enforce social norms.
What areas of our lives does privacy apply to? Canadian authors Tapscott and Cavoukian suggest we take a moment to think about our own lives:
"Does it matter that you are able to maintain a private life, separate and apart from your public or work life? Are there some things that you want to share only with those closest to you, or with no-one at all? " eg transcripts of poor marks at school or university, suicide attempts, personal bankruptcy, severe depression, extramarital affairs.
"Do you want your friends and neighbours to know how much money you make, or that you never paid off your student loan? What about past brushes with the law? What about the details of your medical history: that you had an abortion ten years ago; - that you're receiving treatment for impotence; - that you're taking Prozac or AZT; - ; that you've had an HIV test?"
Working in the privacy field, we deal with a number of areas of privacy:
- physical (body/bag searches, body samples, video surveillance, workplace drug testing)
- information privacy: information about you given to or gathered by government and private sector bodies;
- genetic privacy: related to both of the above, very important because genetic material is unique to you and if misused consequences can be very grave.
2. Challenges electronic environment poses to privacy
- In some senses, inefficiency is the friend of privacy.
- Information about you held in a government agency on a single file card in a single location is reasonably difficult to access, unlikely to be sent anywhere else.
- Information held on electronic systems allows far greater access to personal information by greater numbers of people: systems which are networked may allow multiple users access to a record in multiple locations. E-mail allows easy sending of information.
- Developments which have had an impact on privacy in the last 20 years include
- personal computers
- database design
- networks and the internet
- value placed on information as a commodity
- entrepreneurial government
- Statistics can be more easily gathered and access to records systems may not be logged. Where data is shared across networks and between agencies, questions of who is the responsible custodian of the data arise: who is responsible for making sure it is accurate, up to date, protected?
- If the systems themselves are not properly secured, hackers can gain access to highly sensitive personal information.
- Data in electronic systems is often centralised, easily searchable and linked across multiple databases. In our experience at Privacy NSW, the more comprehensive and up-to-date your database is, the more people will want to have access to it.
- Technology in other areas has grown to enable easy collection of information (eg video surveillance, internet cookies), storage and analysis of different types of information eg DNA databases.
3. Legislative and policy responses
- The right to privacy is a human right and is recognised as such by a number of human rights instruments, including the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child.
- OECD principles from 1981 lay down basic principles of information privacy protection
- Overseas Legislation: Canada, NZ, EU Directive which is now driving legislative change in Europe and outside it, US Safe Harbour agreement.
- Australian legislation: Federal Privacy Act 1988, ACT Health privacy legislation, and Privacy and Personal Information Protection Act 1998 (NSW), Workplace Video Surveillance Act 1998.
- Pending legislation: private sector included in Federal privacy legislation, Victorian Data Protection legislation, health privacy legislation.
- Privacy legislation has posed some challenges for research and Privacy NSW is currently developing a code of practice which will enable access to data for researchers. This is important as will affect NSW state government libraries and museums. Issue is to facilitate research while protecting reasonable privacy expectations of living people and relatives of those recently deceased.
- Impact of privacy legislation on intellectual property: impacts on intellectual property insofar as it contains personal information about identifiable people eg deposited records with a State library which contain information about relatives of the writer.
4. The way forward
- Challenge for privacy agencies is to maintain privacy standards while encouraging government agencies to embrace the benefits of new technology.
- Public have indicated that they don't want ID cards (Australia card) and don't like their data being collected and sold without their knowledge and consent (Axciom).
- Federal privacy legislation has been in force for over ten years now.
- This demonstrates that people working in government need to be constantly aware of their dealings with clients' personal information: complacency can lead to grave and public errors such as the example noted above.
- Emerging areas of work for Privacy NSW include:
- Workplace drug testing: privacy invasive and often not necessary unless safety a consideration;
- Psychometric testing in the workplace: what happens to the results? Do employees have to undergo it?
- Electronic Health Records: Commissioner chairing task force into this at present for Health Minister, issues around health care, universal patient identifiers, etc;
- Genetic privacy: genetic info provides information not only about the subject but also about their family, potential for misuse; DNA databases compiled to solve crimes risk stock-piling genetic material for uncontrolled purposes.
Last modified: 2000-12-11