Technology developments can be challenging to privacy laws. We all know our phones are powerhouses of data collection, and that our data is the key asset for big tech. But we don’t always know what data is being collected, nor how it is being used.

Recently in Australia the Federal Court found that Google misrepresented how Android OS collected, stored and used personally identifiable location data. As the Australian Competition and Consumer Commission Chair Rod Sims said, “This is an important victory for consumers, especially anyone concerned about their privacy online, as the Court’s decision sends a strong message to Google and others that big businesses must not mislead their customers.” Privacy and consumer laws can bite back.

While we know phones are collecting our data, other new technologies and practices are pushing the boundaries of how we expect our personal information to be treated. One of the key functions of the Privacy Commissioner is to monitor and examine the impact that technology has on privacy. The Privacy Commissioner recently discussed this connection between technology and privacy for a chapter in a book celebrating 60 years of IT Professionals in NZ.

The development of privacy is often traced back to the seminal article in 1890 by Warren and Brandeis. Core to the writing of the article was their concern that the ‘recent invention’ of the photographic camera would destroy privacy among Boston socialites:

Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that “what is whispered in the closet shall be proclaimed from the house-tops” …The press is overstepping in every direction the obvious bounds of propriety and of decency.

By the 1970s New Zealand society was producing a large and continuous flow of information, which was only managed through the use of computers. This radically changed the concept of individual privacy, raising legitimate concerns that an individual’s personal affairs were moving out of their control. This concern was focused in New Zealand on the Wanganui Computer, a mainframe computer on which Police, Justice and Transport shared information, raising the spectre of “Big Brother”. The legal response was to pass a very proscriptive and restrictive law called the Wanganui Computer Centre Act 1976, to ensure that the system made no unwarranted intrusion upon the privacy of individuals.

Technology has again changed considerably since the 1970s, and the place of privacy in our society is also changing.

One of the real shifts that we have seen is a move away from a binary concept of privacy, being it’s either private or it’s not. The old common law concept is that if it is in the public domain then it can’t be private; if you are walking down the street you have no expectation of privacy. That has been reflected in our data protection laws, and the Privacy Act has a number of exceptions to the restrictions of information, including being publicly available information.

But some of the new technologies, such as biometrics, really challenge that. Is your face publicly available information just because you happen to be wearing it when you are out in the street? Is that enough to say that you no longer have any right or expectation that those very unique facial measurements that distinguish you from everybody else can’t be harvested and put to use for a range of benign or malign purposes? These are interesting questions.

In Challenging technologies: Perspectives from the Privacy Commissioner the Commissioner discusses privacy as a public good, the NZ COVID tracer app, the concept of open data, anonymisation and differential privacy, Māori approaches to privacy, cultural and international perspectives, and the role of IT professionals. The book celebrates 60 years of technology in New Zealand.

This book is available in paper or digital versions:

Paperback here

Ebook on Kindle, Apple Books, Kobo, Booktopia, Barnes & Noble, Google Play Books, Scribd, Smashwords

You can also read it online here: https://history.itp.nz/

Edwards, J. & Bennett, L. (2021) Challenging Technologies: Perspectives from the Privacy Commissioner. In J. Toland (Ed.), From Yesterday to Tomorrow: 60 Years of Tech in New Zealand, IT Professionals New Zealand