Privacy in the age of surveillance
Big Data is being increasingly used by law enforcement and intelligence agencies to predict, investigate, understand and disrupt crime and other incidents. This article draws on the research project Big Data and National Security which was conducted as part of the Data to Decisions Cooperative Research Centre (‘D2DCRC’). This article does not argue a position nor does it provide a comprehensive analysis of issues. Rather, this article is a descriptive piece that addresses the perceived advantages, as well as the risks and challenges, that big data poses for use by law enforcement and intelligence in the national security space. In doing so, the article touches on both under-explored and unexplored issues with big data and national security, thereby highlighting areas that require further research and investigation.
There was of course no way of knowing whether you were being watched at any given moment. How often, or on what system, the Thought Police plugged in on any individual wire was guesswork. It was even conceivable that they watched everybody all the time. But at any rate they could plug in your wire whenever they wanted to. You had to live — did live, from habit that became instinct — in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinised.
Traditionally positioned at the top of the hierarchy of visibility, police are being incorporated into the surveillant assemblage as a result of the proliferation of citizen cameras and viral sharing of footage of misconduct. As they struggle with their new visibility, many departments have turned to body worn video (‘BWV’) as a solution. These mobile audiovisual devices attach directly to the officer’s body and record their interactions from a first person perspective. The result is that BWV devices change the vantage point of the surveillant gaze, bringing it to a closer, more intimate position. Additionally, as state actors that represent the official authority, the video traces of police interactions stand to become the official account. No longer reliant on the officer’s subjective interpretation, investigations can now look to the perceived ‘truth’ captured by the camera and the data that comes with it. By positioning their devices as objective and superior, police organisations have worked to undermine the legitimacy of alternate sources of footage. By controlling the footage police organisations are able to control narratives, establishing a level of strategic visibility that allows them to reclaim much of the control previously lost to the assemblage. As a result, police must now ensure that the camera is interpreting the situation appropriately in the moment, documenting any necessary details. In order to successfully produce quality footage, officers must embody their technologies and approach their work using a cinematic logic; they must become their cameras. Shifting the focus of policing in this way raises significant questions about how police work is changing as officers are forced to become videographers, tasked with making sure that the video tells the right story.
Closed-circuit television (‘CCTV’) is a surveillance method that is both increasingly common and increasingly vulnerable to misuse. This article highlights two main forms of CCTV misuse, and explains why non-legal protections in such contexts often prove inadequate. Having demonstrated the need for legal protections, the article focuses on criminal prosecutions against misuses of non-covert CCTV in New Zealand. Such an analysis is especially timely following a recent decision of the NZ Supreme Court, which expanded potential criminal liability in this area. The article analyses and evaluates that Supreme Court decision, and identifies relevant situations that could still pose challenges in the decision’s aftermath. The article considers these challenges and proposes ways to address them, with the understanding that the law in this area may be further refined in the near future.
Individual privacy management
The brave new online world in which we live poses a challenge to our privacy. The laws which aim to protect it often rely on the mechanism of notice and consent as a means of authorising data processing. However, this appears to be an inadequate approach since people have difficulty weighing the costs and benefits of data transactions. The article identifies the reasons for this crisis of consent by analysing how the design of the online environment influences the outcome of transactions and shifts the balance towards the stronger party. It also shows which particular characteristics of the online environment are responsible for this imbalance. Next, the article presents the concept of individual privacy management, which aims to address the described problems. It is a way of thinking about the whole process of data processing using methods derived from the classical school of business management. The article defines the necessary functions of individual privacy management and analyses conditions for their successful implementation. It concludes that individual privacy management is possible to implement and that it seems to be an efficient way to develop privacy protection which, in turn, may raise the level of trust in the digital economy.
Privacy and the Internet of Things
Megan Richardson, Rachelle Bosua, Karin Clark and Jeb Webb with Atif Ahmad and Sean Maynard
Interactivity and interconnectivity of heterogeneous objects are at the heart of the Internet of Things (‘IoT’), and promise to impact our lives in positive as well as negative ways. Our qualitative study explored attitudes of IoT consumers as well as IoT software designers/developers to these issues. Our findings suggest that users desire more transparency and control regarding the collection, storage and use of their private and personal information than they currently have. Designer/developer views varied with interviewees revealing diverse and inconsistent approaches to privacy and data protection across different business environments. These reported differences call for re-examination of existing legal regulatory frameworks.
Puzzling out global privacy: The EU transfer effect
Data privacy laws, and thereby individuals’ ability to control how their personal data is handled, vary considerably across different jurisdictions. The problem with this piecemeal approach to data protection is that, in a digital age, laws have boundaries whereas data does not. However, any international consensus on where the right balance lies appears to be a long way off. By global standards, Europe sets a high bar for the protection of personal data — a bar that is set to rise again in 2018 with the commencement of the European Union’s General Data Protection Regulation. This article explores the gradual expansion in European data privacy laws that is taking place as a result of attempts to prevent European rights being circumvented by the offshoring of data processing activities to countries offering a lower level of protection. It considers how attaching privacy rights to data as it is transferred across national boundaries generates complexity that, in turn, encourages global businesses to adopt European standards of data protection and creates new challenges for national sovereignty.
The unauthorised circulation of personal images is one of the most pressing issues concerning the surveillance and privacy of women. Women’s bodies are being filmed and watched, without their consent, at an ever increasing pace. However, while this problem has intensified in recent years due to technological developments, particularly the ubiquity of smart phones and social media, it is also as old as photography itself. In the late 19th and early 20th centuries, legal cases and commentary about the circulation of images of private persons without consent led to the establishment of a right to privacy in the United States (the first in the common law world). Women brought these cases to resist having their images exploited, possessed and objectified by men. This article will examine the rising trend of ‘revenge porn’ and associated image-based harms within the context of their gendered legal history and analyses the current and proposed legal mechanisms for addressing it in Australia.