Introduction

9.1 Developments in technology have always influenced discussions about privacy and the formation of information privacy laws. The first modern academic discussion of privacy in 1890[1] was prompted by concerns about the impact of new technologies on privacy, in particular ‘instantaneous photography’.[2] In 1983, concerns about dangers to privacy, including developments in information technology and surveillance technology, led the ALRC to recommend in the Report, Privacy (ALRC 22) that legislation containing information privacy principles be introduced.[3] Specific privacy concerns related to developments in technology included: increased storage of personal information; speed at which information could be retrieved; substantial reduction in the cost of handling personal information; enhanced linkages between different information systems; aggregation of personal information obtained from different sources; security of information systems; and increased transborder data flows.[4]

9.2 In the Second Reading Speech for the Privacy Bill 1988 (Cth) the then Attorney-General, the Hon Lionel Bowen MP, stated that rapid developments in technology for the processing of information had ‘focused attention on the need for the regulation of the collection and use of personal information by government agencies and for an independent community spokesperson for privacy’.[5] In 2000, concerns about the security of personal information disclosed during online transactions provided impetus for the introduction of the private sector provisions of the Privacy Act 1988 (Cth).[6]

9.3 Two recent reviews have considered privacy and emerging technologies. In 2005, the Office of the Privacy Commissioner (OPC) concluded a review of the private sector provisions of the Privacy Act (OPC Review). Also in 2005, the Senate Legal and Constitutional References Committee concluded an inquiry into the Privacy Act (Senate Committee privacy inquiry). Both the OPC and the Senate Committee recommended that there should be a wider review of privacy laws in Australia and that this review should consider whether the provisions of the Privacy Act remained adequate and effective in light of developments in technology.[7]

9.4 Part B of this Report considers the impact of developing technology on privacy. This chapter provides an overview of several developing technologies. Chapter 10 discusses how best to accommodate developing technology in a regulatory framework. The impact of ‘Web 2.0’[8] and how the internet has changed the nature of a ‘public’ space are discussed in Chapter 11. Finally, Chapter 12 discusses the prevalence of identity theft in the electronic environment.

[1] S Warren and L Brandeis, ‘The Right to Privacy’ (1890) 4 Harvard Law Review 193.

[2] D Solove, M Rotenberg and P Schwartz, Information Privacy Law (2nd ed, 2006), 10.

[3] Australian Law Reform Commission, Privacy, ALRC 22 (1983), Rec 58.

[4] Ibid, [5.7]. The ALRC also noted that new small computers ‘may provide effective safeguards for privacy because they are not usually interconnected’: Australian Law Reform Commission, Privacy, ALRC 22 (1983), [1391]. The ALRC’s general approach to technology, however, reflected an awareness of the impact on privacy of future linkages between technical systems. Australian Law Reform Commission, Privacy, ALRC 22 (1983), Summary of Recommendations.

[5] Commonwealth, Parliamentary Debates, House of Representatives, 1 November 1988, 2117 (L Bowen–Attorney-General), 2118.

[6] Commonwealth, Parliamentary Debates, House of Representatives, 12 April 2000, 15749 (D Williams—Attorney-General), 15749.

[7] Parliament of Australia—Senate Legal and Constitutional References Committee, The Real Big Brother: Inquiry into the Privacy Act 1988 (2005), recs 6, 8; Office of the Privacy Commissioner, Getting in on the Act: The Review of the Private Sector Provisions of the Privacy Act 1988 (2005), recs 1, 69.

[8] The term ‘Web 2.0’ can be used in various contexts. In this Report, it is used to refer to the social phenomenon where internet users—often individuals acting in a personal capacity—upload and distribute content such as text, photographs and videos.