Navigating the balance between privacy and security
5 May 2018|

The Cambridge Analytica scandal and recent testimony by Facebook CEO Mark Zuckerberg before the US Congress has reacquainted millions of people around the world with the issue of privacy. The scale of the controversy is itself a demonstration of the extent to which privacy rights are valued, and that the battle to retain ownership of information about oneself is worth fighting for its own sake.

This important discussion is being held in the context of the relationship between a social media company and its users, but a far older—and more significant—relationship is between states and citizens. In Australia, with the establishment of the Home Affairs portfolio and other significant, ongoing developments inspired by the 2017 Independent Intelligence Review, it’s pertinent that we consider the principles that underpin national security policy.

The foremost challenge in this area is the nexus between privacy and public safety. Our law enforcement and intelligence agencies have for many decades fostered a collaborative relationship with the Australian community. Justice Robert Hope raised this point in 1977 in the conclusion of the Royal Commission on Intelligence and Security. It was re-emphasised by Michael L’Estrange and Stephen Merchant in the Independent Intelligence Review.

That relationship continues to be largely successful, but we shouldn’t neglect its maintenance. In a security or safety-first paradigm, this means reacquainting ourselves with the value of privacy as a guiding principle of public policy.

Simply put, privacy is about the control we have over information about ourselves. It encompasses such things as protection of—and solitude in—one’s own home, freedom of thought and conscience, and freedom from intrusion and arbitrary surveillance, arrest or interrogation.

In Australia, there are statutory instruments, socio-political norms and oversight institutions such as the Independent National Security Legislation Monitor and the Inspector-General of Intelligence and Security that work effectively to uphold these ideals. But obvious difficulties arise from the fact that they can’t be adhered to in absolute terms.

It’s important, for instance, that the security of the populace and of the government (among other interests) is defended, which means that policymakers are challenged to strike a careful balance between interests and values. This dilemma was explained by Prime Minister Malcolm Turnbull when he addressed the Parliament in July 2017 on the subject of national security in light of terrorist attacks in Melbourne, London and Baghdad.

As an example, the PM focused on encryption, a feature of communications technology that enables people to disguise their online footprints, especially discussions with others, on any number of personal devices. It’s difficult to manage in a law enforcement context, where individuals’ legitimate protection of personal matters must be offset against the need for agencies to have the tools to carry out their important work. ‘The privacy of a terrorist,’ the PM argued, ‘can never be more important than public safety. Never.’

In strict terms, operational requirements can mean that breaches of privacy might be viewed as inconvenient necessities. But as the PM identified, there’s a broader test at play that goes beyond the cases where a group or individual’s responsibility for a criminal (or terrorist) act is clear. What if the subjects are under suspicion, or no act has yet been committed? Justifiably, counterterrorism strategies now lean more towards preventative measures in recognition of the fact that a reactive approach has diminishing returns. So, which priority ought to come first?

Unless you take the view that national security problems can only be solved through the purview of realpolitik, the enjoyment of collective security is contingent on the recognition of, and respect for, fundamental principles. This means that security consists of defending things of both material and intrinsic value.

The ongoing debate about foreign interference is a case in point. There’s more at stake than the economy, critical infrastructure and public safety, because we want to be able to say honestly that our democratic systems and institutions aren’t only different to authoritarian models, but are also functionally better and more conducive to human wellbeing. If the choice is made to cast privacy aside as if it’s merely an abstract ideal, then our ability to uphold that important distinction will erode.

Of course, the privacy–security dilemma will always be formidable and can never be fully resolved. For this reason, it’s important that consultation between the Australian public, intelligence and law enforcement agencies, and the government more broadly remains as active in the future as it is today.