APEC vs APT?: The struggle for regional privacy standards Graham Greenleaf ‘Terrorists & Watchdogs’ Conference, 8 September 2003

Regional privacy standards There is no global standard One region (Europe) has successfully developed regional standards Council of Europe Convention 1981 European privacy Directive 1995 The Asia-Pacific is the next most advanced region in privacy protection Far less political and economic unity or uniformity Starting the most important international privacy developments since the EU Directive ….

Toward an Asia-Pacific standard APEC’s privacy initiative Chaired by Australia Asia-Pacific Telecommunity (APT) Chaired by Korea Asia-Pacific Privacy Charter Council A ‘civil society’ expert group FTAA will also affect some countries (Free Trade Area of the Americas)

APEC’s privacy Principles Australia chairs a working group of 10 countries since Feb 03 Starting point: OECD Guidelines (1981) What’s the purpose?: A minimum standard where compliance will (somehow) justify regional free flow of person information A standard which will encourage (minimum) protection in countries where there is none

APEC’s privacy Principles - Progress or stagnation? 5 draft versions in 6 months Do not yet reach OECD standards Only considering very minor improvements to OECD V2 strengthened V1, but V3 and V4 far weaker for little apparent reason Serious US input coincides with V3 At best it offers ‘OECD Lite’ ….

APEC’s ‘OECD Lite’ Examples of weak and outdated standards Based on Chair’s V4 (Aug 03) - now behind closed doors No objective limits on information collection (P1) No requirement of notice to the data subject at time of collection (P3) Secondary uses allowed if ‘not incompatible’ (P3) OECD Parts 1, 3, 4 and 5 all missing as yet Farcical national self-assessment proposed (V1) Why start from a 20 year old standard? Most regional countries are not members Recognised as inadequate (eg Kirby J 1999)

The alternative: A real Asia-Pacific standard Actual standards of regional privacy laws Eg Korea, Canada, Hong Kong, New Zealand, Taiwan, Australia, Japan, Argentina Principles stronger than OECD are common Expert input is needed to identity this standard, not filtered through governments Privacy Commissioner need a collective role No equivalent yet to A29 Committee Santiago (Feb 04) only offers input on implementation Asia-Pacific NGO experts are developing the APPCC We need to adopt and learn from 25 years regional experience, not ignore it

Examples of high regional standards Collection objectively limited to where necessary for functions or activities (HK, Aus, NZ - Can stricter) Notice upon collection (Aus, NZ, HK, Kor) Secondary use only for a directly related purpose (HK, NZ, Aus - Kor stricter) Right to have recipients of corrected information informed (NSW, NZ) Deletion after use (HK, NZ, NSW, Kor)

APT privacy Guidelines (draft) Asia-Pacific Telecommunity (APT) 32 states via Telecomms ministries (etc) Guidelines on the Protection of Personal Information and Privacy (draft), July 2003 Drafting by KISA (Korea), with Asian Privacy Forum Attempts to take a distinctive regional approach Explicitly not based solely on OECD or EU (cl8) Says OECD Guidelines ‘reflect … the 70s and 80s’ ‘Concrete implementation measures’ unlike OECD Allows more variation between States that EU Emphasises role of government, not litigation Adds new Principles in at least five areas …

APT Guidelines - implementation Legislation required + self-regulation encouraged A privacy supervisory authority required Supervision and complaint investigation Data export limits may be ‘reasonably required’ to protect ‘privacy, rights and freedoms’; free flow of information otherwise required Limits on these guidelines only by legislation; only to the extent necessary for other public policies Common character string need to deal with spam

APT Guidelines - new Principles No disadvantage for exercising privacy rights (A5(2)) Notification of corrected information to 3rd party recipients (A6(4)) ‘Openness’ of logic of automated processes (A7) No secondary use without consent (A 14(2)) Deletion if consent to hold is withdrawn (A16) Duties on change of information controller (A19) Special provision on children’s information (A34) Personal location information Principle (A30) Unsolicited communications Princple (A31)

Conclusions Why are APEC and APT so different? Membership similar except for the USA Australia’s APEC initiative had a defensive and outdated starting point (OECD) Inadequate process: no collective expert input, and now behind closed doors A more consultative, confident, and region- based APEC initiative is needed