UNSW CLE 19 July Privacy and Law enforcement in the on-line world – the bigger picture. Nigel Waters Convenor, Australian Privacy Charter Council Pacific Privacy Consulting UNSW CLE Seminar – eSecurity & eCrime 19 July, 2001

UNSW CLE 19 July 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 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

UNSW CLE 19 July 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

UNSW CLE 19 July 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

UNSW CLE 19 July 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

UNSW CLE 19 July 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

UNSW CLE 19 July 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?

UNSW CLE 19 July 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

UNSW CLE 19 July Data-matching Reversal of onus of proof AUSTRAC example –Subjective? –Disproportionate? Tendency for subjective norms to replace objective criteria

UNSW CLE 19 July 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