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Net Privacy

The priority for all of us at the moment is dealing with coronavirus. That’s our great challenge. As it happens, privacy is a big part of that.

The key question is: how do we balance public health and personal privacy? That is, how should the government and health authorities be able to access personal data and health data, while still respecting individual privacy, which is an integral component of our freedom? For instance, should the government be able to track people’s location data to stop COVID-19’s spread?

This isn’t the only way privacy has become highly relevant. Now that most of us are spending so much time at home, we’re increasingly living online. We’re working, socialising, shopping, entertaining ourselves through our smartphones, laptops and other connected devices. Just what data are Amazon’s Alexa, Facebook Live, Google Hangouts, Microsoft Teams, Zoom and other digital platforms collecting? How are these platforms using it? Who are they sharing it with? And who else can access it?

As we respond to this pandemic, this is the perfect time to address these questions. The first priority is to deal with the virus. As we do so, we need to ensure that we enact laws and other protections that get the balance right, during the pandemic, but also when life returns to normal.

The aim of Net Privacy is to lay out a plan that can strike that balance. The books subtitle is, 'How we can be free in an age of surveillance'. It obviously refers to freedom from unwarranted intrusions on our privacy. But we also want to be free from pandemics. The book was written before COVID-19. Still, it recognises that privacy doesn’t exist in a vacuum, but must be weighed up against other rights and interests. One step in this direction, it proposes, is for Australia to adopt legal provisions in line with Europe’s General Data Protection Regulation. Beyond this, the law ought to enact a series of privacy principles that get the balance right, for now, and for later.

The requisite balancing act is the focus of the following extract, where I build on Kant’s ethics and his idea of cosmopolitanism to argue for a globally-aligned approach to protecting privacy.

Extract from pp299-301:

The time is right for a globally aligned approach founded on the GDPR, and which extends international human rights–style protections for online conduct. Increasingly, regulators, legislators and innovators are coming to agree that privacy requires regulation, and that such regulation must be, as far as possible, globally harmonised. In other words, that we need to take a cosmopolitan approach to digital privacy.

Naturally, there will be resistance. As Australia’s competition watchdog chair Rod Sims has noted, worldwide regulatory alignment is unlikely in the short term. In Washington DC, for instance, an anti-globalist mood prevails. In September 2019, US President Donald Trump said ‘the future belongs to patriots not globalists’, adding that ‘the future belongs to sovereign and independent nations, who protect their citizens, respect their neighbours and honour the differences that make each country special and unique’. Pointedly, he made these comments during an address to the United Nations.

The encouraging news is that the mood has shifted, however, and once moves for globally aligned privacy protections take hold, momentum can build. Perhaps quickly. Moving quickly, after all, is digital’s strength. To paraphrase Facebook’s now-abandoned motto, ‘Move fast and break things’, the opportunity exists to move fast and fix things.

And as we move fast and fix things, we must remember to keep privacy in context. That means taking a holistic approach. The proper protection of privacy involves taking into account other rights, freedoms and interests, including freedom of speech. Following the livestreaming of the massacre of 50 people in Christchurch in March 2019, there were calls to regulate online content. In early April, the Australian government moved first, hastily creating two offences to thwart ‘abhorrent violent material’. My point isn’t about the worth of the legislation (other than to commend its minimum viable legislation approach). Rather, it’s that the complex of issues concerning our online engagements needs to be considered in totality. We ought to consider our approach to privacy in conjunction with our approach to: offensive and abhorrent content; personal and national security; defamation, libel and slander; free speech and free expression; the freedom of the press; and misinformation and fake news. And we need to remember the benefits of data, including the way diseases are being contained, child pornographers are being caught, and illegal fishing is getting harder due to public surveillance from space.

Privacy should only be addressed in the context of other rights, freedoms and interests. What’s more, privacy should only be addressed in the context of underlying social conditions. All of our engagements are contingent upon our bodies and our social relations. Once we acknowledge that women are less empowered and valued than men, for instance, this will deepen our understanding that privacy is gendered, just as it discriminates in other ways. These underlying inequities need to be addressed.

The law of privacy urgently needs an overhaul. The overhaul needs to be comprehensive and coherent. It needs to be conducted nationally, yet globally oriented. But privacy regulation can only work, ultimately, as a carefully calibrated component in a broader regulatory package that also takes into account other rights, freedoms and interests, and that further takes into account underlying preconditions, including inequities of gender, sexuality, race, and so on. And luckily, the law doesn’t have to protect privacy all on its own. Social norms, market forces and coding also have a significant role to play, enabling universal prescriptions to be applied with local inflexions.

Sacha Molitorisz's book Net Privacy: How we can be free in an age of surveillance was published by NewSouth in April 2020.

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