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Roger Clarke's 'Emergent Privacy Principles'

Emergent Privacy Protection Principles

Roger Clarke **

Version of 28 April 2003

© Xamax Consultancy Pty Ltd, 2003

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The advance of technologies such as digital signatures, biometrics and surveillance has resulted in increasing recognition across the world of the inadequacy of existing data protection laws as a basis for protecting citizens' privacy and human rights.

Among the alternative responses to this realisation are the extreme outcomes of acceptance of 'the death of privacy', and the emergence of much more substantial forms of human rights instruments. An intermediate possibility is the emergence of additional Privacy Principles to supplement those codified in the OECD Guidelines and implemented in most countries in Australia's reference group.

The following are examples of the kinds of Principles that are emerging.

1. Requirement to Support Anonymity

This appeared in the Australian Privacy Charter in 1994, and is expressed in the National Privacy Principles that apply to the Australian private sector as follows: "Wherever it is lawful and practicable, individuals must have the option of not identifying themselves when entering transactions with an organisation". It is also included in the Victorian and Northern Territory legislation regulating the public sector, and in the Australian Privacy Commissioner's Guidelines in relation to PKI.

2. Limitations on the Multiple Use of Identifiers

This has appeared in various forms, e.g. in relation to the Tax File Number, the Canadian Social Insurance Number, private sector use of identifiers assigned by Australian government agencies, and the Victorian and Northern Territory laws.

3. Purpose Justification

Longstanding formulations restrict the use of data to those purposes authorised by law, or consented to. There are increasing expectations that the purposes for the use of data, identifiers in particular, and indeed for technologies, have to be justified, and that the justification has to be published. The Canadian laws include the requirement and so does the N.S.W. Law Reform Commission's Report on Surveillance.

4. Requirement for Privacy Impact Assessments

More specifically, it is increasingly expected that each organisation that seeks to implement a significantly privacy-invasive technology or scheme will undertake a formal and consultative study of its negative impacts on privacy, whether they are justified, and how they can be ameliorated. This has been implemented in the law of Canada, in the practices of the governments of Ontario and Hong Kong, and in the Australian Privacy Commissioner's Guidelines in relation to PKI.

5. No Disadvantage

There is concern that the exercise of privacy rights by individuals can come at a cost, in such forms as the denial of services, restricted access to services, and lower priority access to services. Forms of a Principle precluding such disadvantages have appeared in the Australian Privacy Charter in 1994, and in the Korean law.

The Authentication Initiative involves powerful technologies. The emergence of these Principles is likely to have considerable implications for the development of the framework, the application of the framework in particular agencies, and especially its application in the multi-agency context of 'joined-up e-government'.

Author Affiliations

Roger Clarke is Principal of Xamax Consultancy Pty Ltd, Canberra. He is also a Visiting Professor in the Cyberspace Law & Policy Centre at the University of N.S.W., a Visiting Professor in the E-Commerce Programme at the University of Hong Kong, and a Visiting Professor in the Department of Computer Science at the Australian National University.

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Created: 28 April 2003 - Last Amended: 28 April 2003 by Roger Clarke - Site Last Verified: 15 February 2009
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