03 December 2013

Silence of the lambs

What's fascinating - and from a public policy perspective quite saddening - about recent controversies in Australia regarding privacy is the apparent indifference of the Office of the Australian Information Commissioner.

It is clear from discussion in the national parliament yesterday, in academic fora and in the mass media that there is both public interest and public concern regarding allegations that the Australian Signals Directorate (the intelligence agency formerly identified as DSD) has been sharing metadata about Australian citizens and other people.

I refer specifically to allegations, given that the apparent source of the information - Edward Snowden - is problematical and that the claimed willingness of the agency to share with its peers does not mean that sharing actually took place or (as I've noted recently) was illegal. Regrettably we haven't moved to an informed and nuanced discussion of national intelligence activity involving such legislation.

It is also clear that executives and journalists from News group - the same enterprise that features in daily revelations of impropriety through trial for criminal offences of senior journalists over privacy abuses in the UK - did not hesitate to publish personally identifiable information about peers at the ABC. That publication is a breach of the privacy of the ABC employees and should be condemned as such. (If News believes that there is a compelling public interest - as distinct from public curiosity - in identifying the remuneration of journalists it can presumably negotiate an agreement with its employees and disclose both their salaries and relationships with third parties.)

From a public policy perspective the indifference of the Office of the Information Commissioner to both controversies is sad.

The OAIC has not made a statement about the ABC data breach, presumably relying on the wholesale carve-out for media activity provided by s 7B of the Privacy Act 1988 (Cth). A concise statement condemning the publication and reminding all Australians of the need to respect privacy is quite within the OAIC's powers under that statute. A statement would reinforce the OAIC's moral authority, an authority that can be as effective as any punitive powers under statute and that does not require the deployment of vast resources. A few keystrokes and it is done. Done without any substantive concern regarding diversion of the OAIC's resources and done consistent with the OAIC's charter under the Act.

The OAIC has not made a statement about the Snowden allegations, presumably taking its cue from the Attorney-General's comment that Australian governments do not comment on 'intelligence matters'.  That formulaic disavowal is disingenous and erodes the trust on the part of the Australian community that should be given to activity by intelligence/law enforcement agencies that is legitimate, legal and - in a cold hard world - regrettably necessary.

It would be appropriate for the OAIC to acknowledge concerns regarding metadata, even if through a reminder to all Australians that information collection, processing and dissemination is situated within a legal framework.

The OAIC has instead been silent and remains silent. It is the silence of the lambs, the silence of a body that is apparently out of touch with community concerns or that views its role so narrowly as to preclude a public statement. Such indifference to community questioning of the privacy framework and of privacy values erodes the legitimacy of the OAIC, both within the community at large and within the Commonwealth bureaucracy.

The OAIC has not been silent in all areas. It has been quick to promote 'the easy stuff', in the grand bureaucratic tradition of mistaking events (ie meetings) for outcomes. If we look at its website for example we see a picture of privacy/data protection commissioners after recent meetings. The OAIC has time to publish corporate happy snaps. It does not have time to make a statement regarding matters at the heart of Australian privacy law. It has time to highlight speeches by advocates of open government. It is silent - without even the plaintive bleat of a docile timorous lamb - about a major data breach (no condemnation, no announcement that an own motion investigation is underway) and about claims that information has been collected and gone offshore, legally or otherwise.

Silence erodes respect for privacy and tacitly encourages the behaviour of the News executives.

Silence inhibits public consideration and understanding of questions about boundaries to privacy - in practice and principle - regarding national security.

It is silence that both can and should stop.