Draft: Protecting your right to Privacy, holding power to account.

Australia’s federal structure, independent judiciary, robust representative parliamentary institutions and independent national human rights institution (the Human Rights and Equal Opportunity Commission) play an integral role in protecting human rights. They also provide a bulwark against abuses of power and denials of fundamental freedoms.

The Australian Government encourages people to learn about and participate in Australia’s democratic institutions. Key democratic principles and practices include responsible government; the separation of legislative, executive and judicial powers; the observance of constitutional safeguards; the rule of law; a transparent criminal justice system; equitably resourced and respected opposition parties; and a free media. Australia’s strong democratic institutions are complemented by a number of specific legal protections for human rights.

In Australia, anyone, including the government, can have the lawfulness of their actions scrutinised in a court of law and be held accountable for any activity determined to be inconsistent with the law.

Laws are developed by the executive and must be approved by both houses of parliament. Once a law is passed, the separation of powers doctrine means parliament and the executive are bound to accept a decision of the courts about what a particular law means and how it is to be applied.

-Australian Government, Department of Foreign Affairs and Trade Website, 2014

It is considered unethical for law makers and government bodies in democratic nation states to be opaque or held above public scrutiny or legal ramifications, transparency of government is in the public interest due to the authority it is granted by the public. Yet in the age of digital networks some areas of governance are being promoted as off the table for public discussion, one in particular is concerned with the mediation of content and movement created by networks. State Surveillance has recently been increasing in democratic nation-states. We’ll come back to this in a moment, but first let’s look at some more underlying ideas of privacy and government.

In a democracy, every citizen has certain basic rights that the state cannot take away from them.  These rights are internationally recognized and guaranteed.  Everyone has the right to have their own beliefs, including their religious beliefs, and to say and write what they think.  Everyone has the right to seek different sources of information and ideas.  Everyone has the right to associate with other people, and to form and join organizations of their own choice, including trade unions.  Everyone has the right to assemble and to protest government actions. However, citizens have an obligation to exercise these rights peacefully, with respect for the law and for the rights of others.

It is widely, but not universally, accepted that our universal right to freedom from state interference includes, freedom to communicate without surveillance, or simply a right to privacy. In Australia this has lead to the protection of these in law with the creation of The Privacy Act 1988. The Privacy Act, after recent amendments, contains 13 Australian Privacy Principles which regulate the way public and private sector entities collect, store, provide access to, use and disclose personal information.

The Privacy Act 1988 provides you with rights, including:

  • being told generally what kind of information we are collecting and how we collect it
  • being told generally why your personal information is being collected
  • your personal information can only be collected for a lawful purpose
  • finding out what information we hold about you and have it corrected if it is incorrect, out of date or incomplete, the Freedom of Information Act 1982 also supports this
  • providing that your personal information must be stored securely and protected from interference or misuse

Traditionally a conversation in confidence between two citizens is a private affair of concern only to those engaged in it, in the network world, conversations can be far more public than allowed by previous communication technologies. Information can now flow across great distance between people and cross geopolitical borders in an instant. The information exchanged is no less privileged to freedom though.

When we accept that citizens and governments have a commitment to universal public morality we realise we must have a system of law to hold persons who breach this to account. It’s simple enough idea on the surface, but in this we start to reach an apparent problem with privacy. If we grant absolute privacy, absolute freedom from observation how do we detect crime? And conversely if we accept total surveillance, our every move and conversation monitored, all information shared with a central authority, we lose our independence, agency and freedom. So where do we draw the line? How do we ensure that the balance remains where this proverbial line is drawn? How do we make sure that any measure of such power is accountable and transparent?

These are questions our Governments have to consider and weigh up with their commitments to our rights and freedoms, and their commitments to the rule of law.

The proposed threat of terrorism has been a political motivation that has pushed a different approach to our freedoms and privacy, skewing the balance away from privacy and ever more toward surveillance since the attacks on September 11 on the World Trade Center (CITE SOURCE).

We discovered the scale of this emerging surveillance state in a series of information leaks that were disseminated largely by networked digital media under the assumed protection of public interest reporting. Our traditional canonical sources of information in Government had been with-holding information about the size and reach of these programs and who and what they were monitoring. One of the most controversial programs PRISM was developed by the U.S. Government. That the U.S. Government had been developing huge invasive programs for collecting digital information on a very wide scale challenged our notions of internet privacy, the accountability and transparency of government, and the cost of security. The fact that this activity was made legal via the Patriot Act (in response to 9/11) was evidence for many that executive powers had been used to award powers to covert agencies that breached universal rights, leading eventually to new legislation in the U.S. currently being debated to roll back some of these powers.

The implications though of these security operations being revealed to the public have been far reaching and resulted rather than a rollback of these programs powers to more protection of them and harsh reprimands for those who share such information in beefed up security laws. These laws and the operations they protect have serious impacts for canonical sources of information like media institutions, and for network platforms (one warrant network searches) and their digital users which cannot be overlooked.

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