16 March 2018

Spatial Privacy and Anonymity

Waters v Transport for NSW [2018] NSWCATAD 40 is a landmark case regarding privacy in Australia.

The Tribunal considered Privacy and Personal Information Protection Act 1998 (NSW), commenting
These proceedings concern whether the requirements of Transport for NSW in respect of electronic (Opal) ticketing for public transport concession entitlement holders contravene an Information Protection Principle (IPP) under the Privacy and Personal Information Protection Act 1998 (the PPIP Act). The dominant concern is that the introduction of electronic ticketing removed the ability of certain concession entitlement holders to travel anonymously under that entitlement, with their movements tracked by the respondent agency (as an arm of the Government), contrary to the privacy protections of citizens under the PPIP Act. One issue is whether the collection of personal information for that purpose is reasonably necessary having regard to the stated purpose that the information is collected. ...
The applicant’s general grievance is that this change in the policy has introduced an effective form of surveillance over his ingress and egress within the relevant parts of the State by the lack of any equivalent option for anonymous travel. The applicant ties this grievance to various IPP’s but predominantly his grievance is that the ‘requirement’ of collection of his personal information is not reasonably necessary for the unstated purpose of travel on public transport as an eligible Senior. This central argument equates to a breach of IPP 1 and as a result is contrary to the requirements in s 8 of the PPIP Act
The Australian Privacy Foundation comments
The Foundation has long argued that the requirement for registration for concession Opal users is a breach of the privacy laws. All users of the public transport system in NSW should have the right to travel anonymously and not be tracked.
A case was brought against Transport for NSW by Nigel Waters (life member and a former board member of the Australian Privacy Foundation) in 2016. Mr. Waters objected to a record of his travel being kept that was clearly linked to his identity. Mr. Waters wanted to be able to use public transport anonymously (an option available for Adult Opal Card users).
The NSW Civil and Administrative Tribunal agreed that the travel information was not reasonably necessary. This is a big win for Mr. Waters and tens of thousands of Gold Opal Card users in NSW.
Nigel Waters said: “This is major win for privacy rights in NSW. It clearly raises the bar for all NSW government agencies to apply ‘Privacy by Design’ principles to complex new data driven systems.”
David Vaile, Chair of the Australian Privacy Foundation said: “You shouldn’t have to put up with being potentially spied on as you travel just because you verify your eligibility for a concession.”
Kat Lane, Vice-Chair of the Australian Privacy Foundation said: “The big question is now what Transport for NSW will do? Will they do the right thing and finally recognise the human rights of NSW residents to use public transport anonymously?”
The Australian Privacy Foundation calls on Transport for NSW to immediately disconnect identity details from travel records so that all residents of NSW have their privacy rights respected.