Tower Dumps, Metadata and Privacy

WRITTEN BY: Mark Burdon, Mandy Lim and Rebecca Chong

The use of telecommunications and Internet metadata for law enforcement purposes is currently a highly contested and complex issue, as exemplified by Attorney-General George Brandis’s disastrous attempts to explain the concept of metadata. Metadata, in the simplest of terms, can be described as ‘data about data’. In telecommunication terms, metadata refers to data that is generated during phone calls such as the duration of a phone call, the location the call was made, the phone number called etc. Metadata therefore does not include the actual content of the phone conversation or an email message. Whilst police and government agencies are required to obtain a warrant in order to lawfully gain access to personal content, no such requirement is necessary to access metadata.

This distinction was previously justified because the extent, scope and availability of metadata did not reveal identity or provide an insight into personal and private communications. Today, however, that is not necessarily the case. Technological capacities and the availability of an increasingly greater number of metadata sources now means that law enforcement agencies and other bodies can use metadata to identify intricate details of an individual’s life without having to access personal content.

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To complicate matters further, recent media articles have recently cast light on a new law enforcement practice involving metadata generated from mobile phones and devices, called ‘tower dumps’. This technique allows agencies to collect information from mobile phones on a mass scale by requesting telecommunication providers to provide all data collected by a particular mobile phone tower over a period of time. Data collected from such operations includes the identity, location and activity of the mobile phone devices, even when a call is not being made.

While phone carriers have stressed that it is only metadata that is being collected and not the actual conversations and text messages, the sheer number of persons whose data is collected from a tower dump merits consideration. It has been reported that over ninety nine per cent of individuals whose mobile phone data was collected through tower dumps were not targets for law enforcement or national security considerations. Despite the obvious comparisons to a ‘fishing exercise’, law enforcement agencies nevertheless argue that tower dumps are a powerful tool that assists law enforcement activities. So where should the balance lie between the investigatory requirements of law enforcement agencies and individual privacy rights? Let’s examine tower dumps.

So What’s a Tower Dump?

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The telecommunications infrastructure that is readily accepted today as part of our everyday existence is significantly different to the ‘landline’ infrastructures of the relatively recent yesteryear. Our insatiable demand for mobile technologies, and mobile phones in particular, has required the development of a new technological infrastructure. Mobile phone usage is made possible by the use of radio communications that link an individual’s mobile phone to their respective carrier network. The carrier network is constructed around a large number of radio base stations that facilitate phone to network radio communications over geographical areas. The base stations are generally located on mobile phone towers and the number of phone towers required for a given geographical area depends on the configuration of topological surrounds and population concentration.

Furthermore, as an individual transits from one location to another, the individual’s mobile phone will periodically identify itself to the nearest mobile phone tower in order to maintain constant radio communication and thus ensure the phone continues to operate whilst on the move. Each phone tower has a fixed capacity on the number of phone calls that be taken or data downloaded by individual phone users. Consequently, in urban areas with high density populations, a greater number of towers is required in order to manage and compensate for heavy local network use, which in turn means that such towers have the capacity to record and store details of a greater number of individual phone users.

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This new infrastructure has in turn given rise to new law enforcement investigation and data collection practices. For example, the New York Police Department used mobile phone tower data to track protestors and intercept tweets posted as part of the Occupy Wall Street demonstration. Cell tower data has also been used in successful police investigations for bank robberies and murders and even car thefts and break-ins. Investigations by the American Civil Liberties Union (ACLU), USA Today and Massachusetts senator Ed Markey reveal significant use of tower dumps by US law enforcement agencies. The use of tower dumps in Australia has only lately come to light. Recent articles published by Fairfax Media indicate that law enforcement and other government agencies have engaged in the practice of tower dumps in Australia.  Details about how exactly law enforcement agencies are using the tower dump technique, however, remain minimal. Nevertheless it is important to consider tower dump use in Australia and the effect of the data being used.

Is Tower Dump Data Really Just Metadata?

Current technological infrastructures are potentially a source of mass personal information collection and surveillance due to wide-scale developments, such as the vast extent of mobile phone tower networks, which now generate and record different types of metadata. It is the combination of amount, extent and context that is creating a situation in which the clear distinctions between metadata and content are now being blurred particularly in relation to location-based metadata collection. It is therefore becoming possible to identify individuals and their behavioural patterns from metadata.

For example, researchers from Stanford University have recently demonstrated that metadata generated from mobile phone usage can be used to reveal details of the phone owner’s ‘familial, political, professional, religious, and sexual associations’, as well as ‘potential drug use, medical conditions, political associations and after hours activities with strip clubs’. The Stanford study involved the use of a specifically designed Android app that recorded metadata details of phone use. The simple act of phoning a certain organisation was sufficient to enable the researchers to infer sensitive aspects of an individual’s life. Moreover, calling patterns were also highly indicative of activities of a sensitive or personal nature, as indicated by this example:

“Participant E had a long, early morning call with her sister. Two days later, she placed a series of calls to the local Planned Parenthood location. She placed brief additional calls two weeks later, and made a final call a month after.”

These examples appear to demonstrate that highly sensitive and personal information can be revealed through mobile phone metadata analysis.

Given the potential for mobile phone metadata to reveal highly sensitive and intrusive information about an individual, it could be argued that such data should be recognised as personal information. If that is the case, it may be necessary to revisit the current access regime and question whether warrants should be required for access to telecommunications data generated by tower dumps. This question is especially important considering the breadth of agencies in Australia that currently access this data without a warrant. At present, it is unclear which of these agencies engage in tower dumping practices, but as no further requirements on top of authorisation to access metadata are necessary for a tower dump, it seems that these agencies would be able to engage in this practice if they wanted to.

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It is important to have increased accountability and transparency regarding the use of tower dumps as an investigatory mechanism. Informed and public discussions on access to tower dump data are required to fully understand the complexities that arise. Only then will it be possible to have a forthright and considered dialogue about the difficult balance between law enforcement and privacy that tower dumps entail.

Traditional Cultural Expressions and Copyright Law in Australia

Written by: Jocelyn Bosse

“Some time ago I happened to see a tea towel with one of my paintings represented on it... I was deeply upset and for many years I have been unable to paint. It was then that I realised that I and my fellow artists needed some sort of protection. It is not that we object to people reproducing our work, but it is essential that we be consulted first, for only we know if a particular painting is of special sacred significance.”

— Wandjuk Marika

            Traditional cultural expressions (TCEs) are defined as “those expressions that result from the creativity of individuals, groups and societies, and that have cultural content.”[1] Generally, they include cultural artworks, dances, symbols, music and ceremonies. Most of these are also considered ‘works’ for the purposes of Western copyright law.[2]

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            However, the protection of TCEs faces serious difficulty when it comes to seeking protection via copyright laws. Most TCEs are very old; they have been handed down through generations and often do not have an identifiable ‘author.’ Consequently, indigenous peoples have a hard time enforcing their rights in the courts. Furthermore, the Copyright Act 1968 (Cth) only upholds individual ownership, which does not reflect the communal ownership in Aboriginal clans.

 Why Protect Traditional Cultural Expressions?

            The Intergovernmental Committee (IGC) at the World Intellectual Property Organisation (WIPO) has identified several core reasons for the protection of TCEs:

• to support economic development: some communities wish to claim and exercise IP in their TCEs to enable them to exploit them commercially as a contribution to their economic development.
• to prevent unwanted use by others: some communities may wish to exercise IP rights in TCEs in order to prevent the use and commercialization of their TCEs by others, including culturally offensive or demeaning use.
• protection against IP: communities are also concerned to prevent others from gaining or maintaining IP over TCEs and derivations and adaptations of them. This entails the use of defensive mechanisms to block or pre-empt third parties’ IP rights that are considered prejudicial to the community’s interests.

Australian Cases of TCE Protection

            Foster v Mountford[3] was a landmark case for intellectual property law, and was the first case to recognise the cultural and religious secrets of the Aboriginal Community. In that case, an anthropologist had published a book which included images and descriptions of Central Australian Aboriginal secret ceremonies. The Pitjantjara Council, on behalf of the relevant groups, sought an injunction to prevent publication of the book in the Northern Territory. The injunction was granted, with the Supreme Court of the Northern Territory applying the doctrine of confidential information. The case was decided during a time when many publications were in the grips of controversy due to the inclusion of secret and sacred content. It provides an examples of Australian judges recognising the need for creative thinking at the nexus of intellectual property and Indigenous issues.

C. P. Mountford, anthropologist, photographed working on location at Panaramitee, South Australia.

            Several pre-Mabo[4] decisions attempted to address the issue of copyright and TCEs. Yumbulul v Reserve Bank of Australia (‘the Ten Dollar Note case’)[5] concerned the use of the Morning Star Pole design on a commemorative $10 note. Yumbulul had signed a licence agreement with the Aboriginal Artists Agency. The Reserve Bank then obtained a sub-licence fro mteh Agency. The Federal Court found the pole to be an original artistic work of the Aboriginal artist, Mr Yumbulul, within the meaning of the Copyright Act. However, the Court found that the artist's copyright had been validly assigned to the Reserve Bank.

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1988 Commemorative Ten Dollar Note with Morning Star Pole artwork and other designs

            The depiction of the Morning Star Pole on the banknote caused Yumbulul much criticism by his people, who submitted that the maker of such poles had a cultural obligation to his clan to ensure that a pole was not used or reproduced in any way which offended against their perceptions of its significance. Yumbulul's attempt to set aside the assignment of his copyright in the pole on the ground of unconscionability was unsuccessful.

            Justice French, the trial judge, noted: “Australia's copyright law does not provide adequate recognition of Aboriginal community claims to regulate the reproduction and use of works which are essentially communal in origin… The question of statutory recognition of Aboriginal communal interests in the reproduction of sacred objects is a matter for consideration by law reformers and legislators.”

            Bulun Bulun v R&T Textiles (the ‘T-shirt case’)[6] was an important case because it recognised the fiduciary relationship between an Aboriginal artist and their clan. A T-shirt manufacturer had reproduced Bulun Bulun’s painting ‘At the Waterhole’ without permission and the shirts were being sold in tourist shops. Bulun Bulun took the unprecedented step of bringing an action for infringement of copyright and breaches of the Trade Practices Act 1974 (Cth) in the Federal Court. The case was settled and a large payment was made to the clan.

            During the proceedings, Justice von Doussa noted that there was no common law basis for communal title over the copyright of an artwork. His Honour reaffirmed that Aboriginal peoples were still governed by the laws of the Commonwealth, including the Copyright Act; There was not separate law available. Justice von Doussa also held that a fiduciary relationship existed between Bulun Bulun and his community. The relationship arose due to the nature of artistic ownership in that cultural context.

“This reproduction has caused me great embarrassment and shame, and I strongly feel that I have been the victim of the theft of an important birthright. I have not painted since I learned about the reproduction of my artworks, and attribute my inactivity as an artist directly to my annoyance and frustration with the actions of the respondents in this matter. My interest in painting has been rekindled by the efforts being made on my behalf to resolve this problem, and I am just starting to paint again, although I am doing so in anticipation that this problem will be resolved in the near future. If it is not resolved satisfactorily, I have considered never painting again.”

— Bulun Bulun

            Copyright infringement was successfully argued in Milpurrurru v Indofurn Pty Ltd (the ‘Carpets case’).[7] The facts involved the unauthorised use of Aboriginal designs on carpets. The action was brought on behalf of the estates of five deceased Aboriginal artists, whose works were reproduced in portfolios either for the Australian National Gallery (ANG) or the Australian Government Printer for the Australian Information Service (AIS). The Court held that, despite being pre-existing traditional designs, the artworks in question showed sufficient skill, labour and effort to amount to new works.

The Honourable John von Doussa AO QC

            The Federal Court judge, Justice von Doussa, noted:[8] “The statutory remedies [in the Copyright Act] do not recognise the infringement of ownership rights of the kind which reside under Aboriginal law in the traditional owners of the dreaming stories and the imagery such as that used in the artworks of the present applicants… the evidence discloses the likelihood that the unauthorised reproduction of the artworks has caused anger and offence to those owners, and the potential for them to suffer humiliation and repercussions in their cultural environment.”

            Pursuant to s 116 of the Copyright Act, the Court ordered that the unsold carpets be delivered up, and awarded conversion damages. Further damages were awarded under s 115(2) for the loss of potential educational and similar use of the artworks. The living artists had potentially lost the right to produce clan images because of the connection to derogatory use of TCEs. Justice von Doussa went on to note that there was scope under the Copyright Act to distribute the proceeds of the action to the traditional owners under Aboriginal law: that is, to make a collective award for damages for customary sharing, rather than make individual awards for each claimant.

            Unfortunately, none of these cases entitled representatives of an Aboriginal group to assert communal ownership or claim communal harm.

Treating Aboriginal Clans like Corporations?

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            There have been suggestions that Indigenous groups could be treated as legally-defined entities under copyright law. After all, companies like Disney are able to enforce copyright and register other IP in the corporation's name. However, the copyright legislation is too limited in its definitions to give just recognition to the complex relationships and responsibilities of Aboriginal society. Furthermore, such a solution would not go to the root of the problem: the age of the works and the nature of the protections sought.

Recommendations for Reform

            Australian lawyers and Indigenous peoples have made excellent recommendations for law reform over the last few decades. Despite the numerous books and journal articles by prominent lawyers and academics, all proposed legislative changes for a sui generis system have done nothing but collect dust. The WIPO Intergovernmental Committee has held meetings of lawmakers and indigenous groups from around the world, but any concrete outcomes remain years away.

            Certainly, there is potential for the Federal Government to pass legislation to address Aboriginal copyright issues, given that the Australian Constitution s 51(xxvi) allows the Commonwealth to make special laws with respect to a particular race. However, there is serious debate about whether Australian copyright law – which focuses entirely on individual rights and economic rights – could truly provide for the communal ownership that is recognised under Aboriginal law.

            There is general consensus on this topic that any reform would have to sit outside the Copyright Act in the form of sui generis legislation. Doing so would allow the status quo of copyright law to persist, whilst allowing for the new and separate recognition of Indigenous heritage. Traditional rights could be protected without having to overhaul the Western jurisprudence. Australian lawyer Terri Janke has made suggestions for such reform, including:[9]

• Allow for the nature of indigenous intellectual property to be defined according to customary law.
• Recognition of the perpetual nature of indigenous folklore and knowledge.
• Exemptions from the originality and material form requirements.
• Moral rights of attribution to the indigenous communities rather than just individual artists.
• A right of civil action against infringers
• Persons or bodies with authority to control the commercial use of folklore and traditional knowledge
• Establishment of collecting agencies for the charging of fees for the use of heritage.

            Currently, Aboriginal and Torres Strait Islander peoples are protecting their rights on an ad hoc basis, using licensing programs like those encouraged by 'Dream Shield' via IP Australia:

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            Australia is not alone in this dilemma: all nations with a continuing indigenous heritage (like Canada, the USA and India) are in need of reform to protect the cultural works of their indigenous communities. TCEs simply do not fit with Western intellectual property as it currently stands: it is time to legislate outside the box.

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[1] UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005) Article 4(3)

[2] In Australia, a ‘work’ is defined as subject matter covered by pt III of the Copyright Act 1968 (Cth). Much like English copyright law, the Australian statute gives an exhaustive list of the subject matter protected by copyright. Compare other jurisdictions, like France, which define ‘works’ in broad and open-ended terms like ‘toutes les oeuvres de l’esprit’.

[3] [1978] FSR 582.

[4] Mabo v State of Queensland (No 2) (1992) 66 ALJR 408.

[5] (1991) 21 IPR 481.

[6] (1998) 41 IPR 513.

[7] (1995) 30 IPR 209.

[8] Milpurrurru v Indofurn Pty Ltd (1994) 130 ALR 659, 683.

[9] Terri Janke, Our Culture, Our Future: Proposals for the Recognition and Protection of Indigenous Cultural and Intellectual Property (Australian Institute of Aboriginal and Torres Strait Islander Studies, 1997).

The Aurora Internship Program: When your summer clerkship goes ‘on country’ and ‘out bush’

WRITTEN BY: EMMA SZCZOTKO

Content Advisory: This article contains photographs of Indigenous Australians.

The Aurora Project runs a nationwide Internship Program for law, anthropology and some social sciences students and graduates interested in working in native title, land rights, policy development and advocacy, all with an Indigenous focus. The Program enables eager social justice orientated law students interested in native title to acquire practical knowledge relating to this exciting and evolving area of law. Many property law university courses only briefly introduce the area of native title law, which can result in baffled confusion towards the operation of the rather complex Native Title Act 1993 (Cth). The best way to understand this developing area of law is to get real, practical experience in the field and meet the lawyers negotiating with companies and government and the Traditional Owners (TOs) making the land claims. So with elementary prior knowledge but a wealth of enthusiasm and willingness to learn, I undertook an Aurora Internship.

CYLC Aurora Interns at Cooktown Lookout – on country visit for Olkola People land hand-back ceremony

My experience

I was placed in the Native Title Unit at the Cape York Land Council (CYLC), which is located in Cairns in Far North Queensland. It is one of many Native Title Representative Bodies (NTRBs) around Australia that act on behalf of the TOs of the local region. The internship was for a period of five weeks from mid-November to late December, enough time to gain a solid grounding in making and negotiating land claims. The CYLC had three interns in total during my placement, two law and one anthropology. The interns at many of the NTRBs perform a vital research assistant role that enables these Aurora partner organisations to carry out much of their important work. An added bonus is the interesting and varied placement locations. I visited waterfalls, tropical rainforests, waterholes, saw colourful Australian wildlife and scuba dived on the Great Barrier Reef during my weekends in the Tropics.

Intercultural Interaction

Working in the Indigenous sector means the very nature of how the work is done will be different from the commercial business transactions coordinated by many large city law firms. The key difference between representing clients of NTRBs and commercial clients is the necessity of understanding the cultural context in which negotiations are conducted and exercising cultural awareness and sensitivity. This may mean all the ‘whitefellas’ leaving the room to allow TOs to have private discussions at various points during authorisation meetings. It could involve adapting typical ‘whitefella’ style interactions and presentations with clients to suit remote community meetings. A memorable occasion for me was during an ‘on country’ trip to Lockhart River where the pilot of our small eight-seater plane not only needed to carefully consider balancing the weight of the passengers across the plane but also accommodating passengers with a ‘poison’ relationship. This is where certain persons are obliged to avoid each other, for example by not making eye contact or even being in the same room together.

Lockhart River on country trip, via eight-seater plane charter flight

Nature of work undertaken

The type of work undertaken by legal interns often involves legal research, writing and accompanying colleagues on authorisation meetings. Specifically, some of the topics I researched included Prescribed Body Corporate (PBC) regulations, consultation and alternative negotiation processes, proposed water legislation reform and how it may affect native title holders and local councils taking quarry materials from native title land. I produced an extensive spreadsheet on native title compensation for a community over a 20-year period, including costs of programs and infrastructure. I compiled a table of party obligations and deadlines under an Indigenous Land Use Agreement. Creating slideshow presentations to deliver to remote Aboriginal communities is common. This may involve explaining the process of setting up charitable trusts, PBC regulations and negotiation processes.

It was an exciting time for the staff at the CYLC during my internship because the ‘One Claim’ was lodged at the National Native Title Tribunal. This was a claim for all the remaining unclaimed land in the Cape York Peninsula. This was an innovative strategy to circumnavigate the time-consuming bureaucratic process that burdens land claims. By grouping all the remaining land in one claim the CYLC was moving quickly to signal to other companies wanting to use the land that first they need to negotiate with the TOs. One of the biggest things I learnt was that many TOs do not want to prevent negotiations for development or business on their land. But rather, they are willing to work with other parties, but seek to have a real say in how it will unfold and affect future generations.

‘On Country’ Trips

There may be an opportunity to go ‘on country’ during your internship, which you should take up enthusiastically if given the chance! Fortunately for myself and the two other interns, a momentous and historical land hand-back ceremony was occurring in Cooktown after a 20-year campaign for the return of the Olkola People’s land spanning over 600,000 hectares. It was a wonderful opportunity to speak to the lawyers involved about the process and negotiations leading up to the hand-back and their collaboration with other partner organisations. It was extremely moving to witness firsthand the significance of the hand-back to the Olkola People who for the most part were rather emotional delivering speeches on behalf of their families and ancestors. I feel extremely lucky and privileged to have attended and participated in this important historical event.

Signing of land hand-back agreement to the Olkola People from Queensland Government

The People

The people I worked with were committed and passionate about their cause. This was refreshing and inspiring. The lawyers working in Land Councils not only navigate complex land claims but also exercise practical skills that extend beyond commercial practice. They need to be able to hold the attention of an audience whilst explaining and breaking down ‘whitefella’ law in the context of a history of distrust. They need to possess skills specific to working in a remote workplace including radio communication operation and contact with dangerous animals. The lawyers also hold certificates in four wheel driving and have plenty of off-road experience. This is not your regular city office job.

Tips for working in the Indigenous sector:

• Always ask, do not assume.
• Introduce yourself to TOs and explain who you are and why you are there.
• Ask permission to sit in on meetings and take photos if you are ‘on country’.
• Dress appropriately for the situation. For example, in some Cape York communities it is not appropriate for women to wear their hair out. I would also lean on the side of modesty with clothing. And caution: red dirt will stain everything!
• Be patient and flexible. Things may not go to plan. Problem solving and thinking quick on your feet are highly desirable traits.
• Native title is considered a niche area of law and may not appear to have a well-defined career progression to follow. Fortunately, when you become part of the Aurora Alumni you will receive regular updates on native title and job vacancies in the Indigenous sector.

Interested?

To find out more about the Aurora Internship Program, see http://www.auroraproject.com.au/aurorainternshipprogram

Applications for the winter 2015 internship round are open through 27th March on-line at http://www.auroraproject.com.au/about_applying_internship

To find our more about the Cape York Land Council: http://www.cylc.org.au

Refusals of Treatment by Pregnant Women: the Common Law Position

Written by: UQ Associate Lecturer Kate Curnow

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UQ Associate Lecturer Kate Curnow

During the course of a pregnancy, a woman may need to make many decisions about current or future medical treatment. Those decisions may be about routine procedures and medication (for example, blood tests and antibiotics) or life sustaining treatments (for example, an emergency caesarean or blood transfusion).  Recent Australian cases have suggested that the interests of the foetus may need to be taken into account when considering a refusal of treatment by a competent pregnant woman. 

If a competent adult decides to refuse a treatment, that instruction may be communicated contemporaneously[1] or, in the case of future treatment, through an advance directive that will come into effect if the woman loses legal capacity.   In most Australian jurisdictions, refusals of future treatment can be made through statutory advance directive regimes as well as under common law principles.  The common law is also the key source of the principles that govern contemporaneous refusals by competent adults.     

The common law position is that, in the absence of a widespread and dangerous threat to the health of others and undue influence, a competent adult can refuse specific or all care and medical treatment even if the refusal is intended to, or is likely to, result in the adult’s death or injury. In the case of such a refusal, the competent adult’s right of autonomy outweighs any state interest in preserving life.  Significantly, the basis for the refusal is irrelevant, whether it be personal philosophy or beliefs, cultural or religious traditions, or no identifiable reasons at all.[2]   

The position of refusals of treatment by pregnant women is less clear.  As yet, no Australian case has adjudicated on a refusal of treatment by a competent pregnant woman under the common law.  However, obiter comments suggest the principles that may apply to such a scenario are different to those of other competent adults.  In Hunter and New England Area Health Service v A,[3] McDonnell J cited Donaldson LJ’s statement in Re T (Adult:  Refusal of Treatment) [1993] Fam 95 that “a case in which the choice may lead to the death of a viable foetus” was a “possible qualification to the paramountcy of [the individual’s right of] autonomy”.[4]  McDonnell J then referred to in Re S[5] in which a pregnant woman’s refusal of a caesarean section was overridden due to the risk not having the operation posed to her unborn child.[6]  In H Ltd v J,[7] Kourakis J referred to McDonnell J’s statements in Hunter and New England Area Health Service v A[8] with apparent approval.

The courts in Hunter and New England Area Health Service v A[9] and H Ltd v J[10] did not, however, consider decisions after 1993 by British courts which reject the existence of a state interest in preserving the life of a viable foetus.  In Re MB,[11] the Court of Appeal unanimously expressed the view that the decision in Re S[12] and the comments in Re T (Adult:  Refusal of Treatment)[13] referred to above are incorrect.  The Court of Appeal concluded that:

“The law is, in our judgment, clear that a competent woman who has the capacity to decide may, for religious reasons, other reasons, or no reasons at all, choose not to have medical intervention, even though….the consequence may be the death or serious handicap of the child she bears or her own death….The foetus up to the moment of birth does not have any separate interests capable of being taken into account when a court has to consider an application for a declaration in respect of a caesarian section operation.”

The decision in Re MB[14] was affirmed in St George's Healthcare NHS Trust v S; R v Collins and others, ex parte S.[15] The law in Canada mirrors the law in Britain.[16] The position in the United States is not as certain, as discussed by the Court of Appeal in Re MB.[17] 

So what then is the true position in Australia? The High Court has held a foetus has no rights of its own at common law until it is born.[18]  Following the reasoning in Re MB,[19] it therefore seems unlikely that the Australian common law recognises a state interest in preserving the life of a viable foetus.  Accordingly, a refusal of treatment by a competent pregnant woman should be treated in the same way as a refusal by any other competent adult, unless legislation expressly provides otherwise.

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[1] “Contemporaneous refusal” refers to a refusal of care or medical treatment by a competent adult given at the time a decision must be made about whether to withdraw or withhold care or medical treatment and excludes a refusal made in an advance directive.

[2] Hunter and New England Area Health Service v A (2009) 74 NSWLR 88; H Ltd v J (2010) 107 SASR 352; Brightwater Care Group (Inc) v Rossiter (2009) 40 WAR 84

[3] (2009) 74 NSWLR 88 at [19].

[4] Re T (Adult:  Refusal of Treatment) [1993] Fam 95 at 102.

[5] [1993] Fam 123.

[6] Hunter and New England Area Health Service v A (2009) 74 NSWLR 88 at [20].

[7] 107 SASR 352 at [47].

[8] (2009) 74 NSWLR 88 at [19].

[9] (2009) 74 NSWLR 88 at [19].

[10] 107 SASR 352.

[11] [1997] EWCA Civ 1361.

[12]  [1993] Fam 123.

[13] [1993] Fam 95.

[14] [1997] EWCA Civ 1361.

[15] [1998] 3 All ER 673.

[16] Winnipeg Child and Family Services (Northwest Area) v G (1997) 3 BHRC 611.

[17] [1997] EWCA Civ 1361.

[18] Attorney-General (Qld) (Ex re Kerr) v T (1983) 46 ALR 275 at 277.

[19] [1997] EWCA Civ 1361.

Data Privacy: A European Perspective

Written by: Madeleine Gifford

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Justice and the Law writer Madeleine Gifford

Last month the European Commission confirmed that it still aims to adopt the General Data Protection Regulation (GDPR) before the end of the year.[1] This new set of laws aims to comprehensively protect data privacy, taking into consideration recent technological advancements.

With the exception of the UK, there has mostly been an internal consensus on the underlying values of the legislation, with disagreements mainly concerning administrative issues.[2]

The harshest criticisms of the GDPR have originated from the US. American companies and interest groups active in Europe have argued that overregulation will stifle innovation and harm commercial interests.[3] Following the Snowden disclosures negotiations of the Transatlantic Trade and Investment Partnership and the Safe Harbor agreement have become more strained.[4] Clear divisions over privacy in governmental and commercial areas have resulted in frequent ideological clashes between the EU and US. These issues go beyond the struggle between commercial and consumer interests, to also encapsulate what James Whitman calls the clash between ‘Dignity and Liberty’, in this case the clash between the right to privacy and freedom of speech.[5] This debate was exemplified in the Costeja decision, where many American commentators argued the decision infringed on freedom of information and made Google a moral arbitrator of content.[6] In response, the US’s piecemeal approach to legislation was criticised for not providing adequate legal solutions for people who wished to remove images of dead family members, exploitative images, nude photos or revenge porn from their country’s Google search results.[7]  

For an Australian observer, analysis of these differing approaches is valuable in forming our own approach to data privacy. To better understand privacy concerns within Europe, I’ll be talking to author Yvonne Hofstetter who has become a staple in the German media on topics regarding technological advancements and information privacy.

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Author Yvonne Hofstetter

MG: Thank you for taking the time to speak with me today. To start off, could you provide some examples of privacy infringement and its implications?

YH: There are numerous examples. Bank loans can be influenced by an individual’s Internet history. For example reliability could be determined based on the socio-economic status of friends on social media.  From the analytics of your telephone behavior (for example whether you make calls during the evenings or weekends) analysts can make conclusions about your character.

Data brokers can use these pieces of information as part of a portfolio in determining your reliability and stability. The worry is that data brokers will sell this information to credit scoring firms. There is concern about how this may affect the health insurance industry, and how data may be used to discriminate against individuals. With the introduction of new technologies we need to have these issues in mind. For example, Oral B has introduced a new toothbrush that records the time and manner in which you brush, then sends the data to your dentist. We need the regulations in place so that insurance premiums aren’t unfairly affected if dentists pass this information onto insurance firms.[8]

MG: So what legislative steps should be taken to prevent invasions of privacy? Should it be under the GDPR or through the laws of individual countries?

YH: Data privacy laws are only part of the solution. I don’t think you can fix everything through legal reforms. Technology professionals should build privacy measures into their systems. They need built-in privacy. Legal protections are still of paramount importance. Negative freedoms that allow people to avoid digital platforms should be entrenched in legislation, otherwise discrimination will inevitably occur.

For example, a friend of mine moved to the United States and applied for health insurance. As a military officer it was against protocol for him to have Facebook or other social media accounts. Because the insurance firm used social media to gauge the risk of individual’s leisure and recreational pursuits, and because he didn’t use any of these platforms, he was automatically charged a fifteen percent higher rate as they could not conduct a risk evaluation. This is the type of discrimination that needs to be avoided. However, different nations are going to combat these types of problems in different ways. Europe puts a greater focus on human dignity, whilst America and to some extent other countries such as England or Australia put a greater focus on the concept of freedom.  

MG: In the wake of the Costeja decision, Google will now take requests for content to be taken down.[9] In Germany you can apply for your house to be removed from Google Maps.[10] These solutions seem more reactionary than pre-emptive. Are there any ways that privacy violations could be curbed before they occur?  For example, prior to the program’s launch all domestic violence shelters were removed from Google Maps.[11]

YH: Companies could take pre-emptive steps but they won’t, as it’s not their job. To self-regulate in such a way is not the task of a commercial institution.  It is the job of governments to ensure that Internet infrastructure is compliant with privacy standards. Corporations are going to push the limits. For example, Airbnb or Uber violate many regulations and laws. There was a constant back and forth between Uber and the German courts in 2014.[12] Despite a lengthy privacy policy, Airbnb still does not fully explain who has access to identity verification files. Up until last year Airbnb had no ban on secretly filming guests. Only in November did they finally adopt a disclosure requirement for surveillance equipment.[13]

MG: After recent criticism Uber hired IBM's former chief privacy officer Harriet Pearson to review their data privacy program.[14] Uber appears to be one of a string of companies to have recently pledged more transparency, however these steps don’t lead to any enforceable consequences for misconduct.[15]

YH: Indeed and with new technologies such as the Google Glass you can see a continuation of legal disputes well into the future. In my opinion Google Glass could potentially violate up to fifty different German laws. It is the job of European governments to enforce legal rights.

MG: Privacy concerns regarding something like Google Glass go beyond Continental Europe. In America and the UK it is already looking like the device will be banned in cinemas, cafes, hospitals, casinos and when driving.[16] In Australia last year the ALRC proposed a new national offence for those recording private conversations with new technologies such as Google Glass in mind.[17] This reflects global concern regarding privacy issues, however at the same time a transatlantic culture clash exists.  The European mindset has obviously been shaped by historical violations of privacy under fascist and communist regimes.[18] Data protection is a fundamental right enshrined in Article 8 of the Charter of Fundamental Rights of the European Union.[19]

In comparison the United States has no explicit constitutional protections from privacy violations by businesses and concerns are often raised that privacy laws may infringe on freedom of speech.[20] Arguably more relaxed laws have allowed the US to reap the benefits of big data, creating more innovative and competitive markets. Big data is set to revolutionise the US health care industry and is likely to improve the lives of millions in the process.[21]

In your opinion is this culture clash between the US and EU reconcilable? 

YH: Definitely it is a transatlantic cultural clash and it will not be worked out universally. In the negotiations of the Transatlantic Trade and Investment Partnership (in which they want an open trade zone between the US and Europe) this clash between the values of freedom of speech and human dignity, and to an extent between capitalism and social democracy, can be seen. 

The US will dominate because they can maximise profits, whilst European markets are subject to greater restrictions. We are losing technology. The US is simply stronger at exporting ideas, business models and their understanding of economics.  Already the European military industry is becoming an extended part of the American market, as we are losing production capabilities. Commercially there are no major smart phones being fully produced in Europe therefore we have to accept products with built-in surveillance.  We have no alternatives and with no alternatives can we put our ideals to universal levels? Certainly not.

MG: The GDPR plans to penalize foreign companies acting in Europe €100 000 000 or up to 5% of their annual worldwide turnover for data breaches.[22] From your answer I’m guessing you don’t think this will be enforceable?

YH: I think what first needs to be highlighted is that there is rampant lobbyism in Europe. In Brussels firms will set up their lobbyist teams who will apply written proposals. What’s concerning is that some of these proposals will be copied verbatim into directives and laws. I personally think Google has had too much influence upon the directive. An example of this type of undue influence can be seen in the scandal regarding Belgian MEP Louis Michel who was accused of being influenced by lobbyists.[23]

MG: Michels is not alone - in 2013 senior British MEPs far more blatantly copied lobby papers.[24] Yet this did not breach parliamentary rules and lobbyists have the right to have their positions considered. If they didn’t have their concerns heard the issue would no longer be about balancing corporate and consumer interests but excluding corporate interests all together. Also if companies such as Google hold such influence, how have such high penalty rates been supported?

YH: The GDPR is perhaps the most aggressively lobbied legislative reform in EU history. A less vigilant approach has been proven to fail and any victories again have come through vigilance. Despite potential biases I do think the GDPR will have a positive effect. It will help entrench the right to be forgotten. It will also make it easier for companies, who will now only have to look at one set of laws.

MG: The GDPR was set to save €2.3 billion a year for businesses by unifying a currently fragmented administrative system.[25] Last year saw disagreements regarding how a 'one stop shop' mechanism would be implemented in practice.[26] Concerns regarding Article 17 (the right to be forgotten) were also raised.[27] Consensus over the GDPR sometimes appears to be strained.

Do you regret not being more conciliatory with the initial plan, as support now seems to be fragmenting? Do you think this signals a need for a change of tact by privacy activists?

YH: Securing support from a large group of nations is difficult, and maintaining that support over a period of years whilst facing fierce opposition is even harder. This setback highlights the need to press harder for privacy reforms. It explains why interest in the subject was reinvigorated in 2014. It also shows that changes made to placate corporate interests may not result in financial savings.

MG: The UK often has a different stance on privacy laws from its continental neighbours and the US. For example, the UK is a signatory of the Charter of Fundamental Rights of the European Union, however article 1(1) of an attached protocol states that the charter does not give power to the Court of Justice of the European Union or UK courts to find conduct in violation of the charter.[28] In NS v Home Secretary it was emphasised that this does not mean the UK is exempt from its commitments however doubt still remains as to whether the charter is actually enforceable and has any real effect.[29] Another example could be that many Britons have requested the removal of links following the Costeja decision, despite the ruling sparking controversy within the UK.[30]

What role do you think the UK plays in bridging transatlantic values?

YH: Historically and culturally the UK is much more closely allied with America than with the continent. There seems to be a constant clash of opinions between the UK and the continent and recently the UK’s position within the EU seems to be becoming more precarious. I think no single member of the Five Eye Countries [signals intelligence alliance between Australia, Canada, New Zealand, the UK, and the USA] can radically vary their data privacy policies, even in the corporate sphere.  Historically the GCHQ has been accused of privacy violations worse than those committed by the NSA. Whilst things have changed, there are still ongoing issues. Recently concerns have arisen over the ability of the GCHQ to access bulk NSA data without a warrant. Historical and continuing issues make me hesitant to believe the UK will make sustained changes.[31]

MG: Last year the High Court of England and Wales confirmed the existence of a tort of the misuse of private information in Vidal-Hall & Ors v Google.[32] Australia is obviously not subject to the same conditions, such as those imposed by the UK’s Human Rights Act. However, Australian courts have left the concept of a tort of privacy open, and last September the ALRC recommended the implementing a tort of the misuse of private information.[33] Do you think Australia should protect data privacy through a tort of misuse of private information similar to the one implemented in the UK? Or should data privacy be protected through different methods?

YH: I don’t think such a tort has a future within the British legal system. It is too controversial and is likely to be overridden by legislative amendments. Similarly I think it would be unpalatable to the Australian legal system. Not being an expert in English or Australian law, I wouldn’t be comfortable recommending changes to their privacy laws.

MG: I think we’ve covered more than enough topics for one interview. Thank you so much for taking the time to speak with Pandora’s Blog.

[1] European Commission, Data Protection Day 2015: Concluding the EU Data Protection Reform essential for the Digital Single Marke (28 January 2015) <http://europa.eu/rapid/press-release_MEMO-15-3802_en.htm>.

[2] Germany and France appear concerned that smaller, less capable states could decide on data privacy issues that effect the entire EU.

McCann FitzGerald, Paul Lavery and Ian Duffy, EU data protection – latest developments (January 27 2015) < http://www.lexology.com/library/detail.aspx?g=2a0cbcf2-5c70-4d1f-89bd-f25b347a0a3e>.

[3] There is not only an economic, but social element to the argument against strict privacy laws. Big data is set to revolutionise the healthcare industry, reducing ambulance times, hospital administration costs, improving patient care and revolutionising how the progression of diseases is tracked. Privacy laws could prevent EU citizens from receiving these potential benefits.

Adria Warren and Chanley Howell, Big Data Creates New Opportunities for Healthcare Entities (2 March 2015) The National Law Review < http://www.natlawreview.com/article/big-data-creates-new-opportunities-health-care-entities>.

Michael Roth, How Data Restrictions Hurt The Global Economy (3 March 2015) Information Week <http://www.informationweek.com/strategic-cio/executive-insights-and-innovation/how-data-restrictions-hurt-the-global-economy-/a/d-id/1319301>.

[4] Alexander Dix, EU Data Protection Reform (November 2013) Centre for European Policy Studies< http://www.ceps.eu/system/files/article/2013/10/Forum.pdf>.

[5] James Whitman, ‘The Two Western Cultures of Privacy: Dignity Versus Liberty’ (2004) 113(6) The Yale Law Journal 1151, 1153-1190.

[6] Jeffrey Toobin, The Solace of Oblivion (29 September 2014) The New Yorker < http://www.newyorker.com/magazine/2014/09/29/solace-oblivion>.

[7] Ibid; Adam Clark Estes, This is the Revenge Porn Law We Need in America (25 February 2015) Gizmodo <http://gizmodo.com/this-is-the-national-revenge-porn-law-we-need-1686856437?utm_campaign=socialflow_gizmodo_facebook&utm_source=gizmodo_facebook&utm_medium=socialflow>.

[8] Sam Schechner, Web-Enabled Toothbrushes Join the Internet of Things (2 March 2014) The Wall Street Journal <http://www.wsj.com/articles/SB10001424052702304360704579415161522531046>.  

[9] Google Spain v AEPD and Mario Costeja Gonzále (C-131/12) [2014] ECJ 317.

[10] Kevin O’Brien, Many Germans Opt Out of Google’s Street View (15 October 2010) The New York Times < http://www.nytimes.com/2010/10/16/technology/16streetview.html?_r=0>.

[11] Stephen Hutcheon, Ogle at street level: free speech or invasion of privacy? (5 June 2007) The Age <http://www.theage.com.au/news/national/ogle-street-level-free-speech-or-invasion-of-privacy/2007/06/04/1180809424855.html>.

[12] Concerns regarding Uber in Germany don’t relate to privacy infringement, but they do highlight the struggle of foreign companies to adapt to European regulations. There have been some privacy concerns in other countries:

Kevin Rawlinson, Uber service 'banned' in Germany by Frankfurt court (2 September 2014) BBC < http://www.bbc.com/news/technology-29027803>.

Maya Kosoff, Uber's nightmare scenario: How everything could go wrong for the world's hottest new company (9 February 2015) Business Insider <http://www.businessinsider.com.au/how-everything-could-go-wrong-for-uber-2015-2#more-public-relations-blunders-could-cause-public-opinion-of-uber-to-shift-1.>.

[13] Read more about concerns regarding AirBnB:

Jack Smith, Airbnb Finally Adds a ‘Don’t Secretly Film Guests’ Policy’ (6 November 2014) The Observer <http://observer.com/2014/11/airbnb-finally-adds-a-dont-secretly-film-guests-policy/>;

Nassim Khadem, You can't book with us unless you upload a personal video, Airbnb tells users (16 February 2015) Sydney Morning Herald <http://www.smh.com.au/business/you-cant-book-with-us-unless-you-upload-a-personal-video-airbnb-tells-users-20150216-13foor.html>;

Rishi Iyengar, Airbnb Sued by Group of Users in New York City for Breach of Privacy (3 September 2014) Time

<http://time.com/3260313/airbnb-sued-by-group-of-users-in-new-york-city-for-breach-of-privacy/>.

[14] Serena Saitto, Uber hires former IBM privacy chief to conduct review amid controversy (21 November 2014) Sydney Morning Herald <http://www.smh.com.au/digital-life/consumer-security/uber-hires-former-ibm-privacy-chief-to-conduct-review-amid-controversy-20141121-11r67g.html>.

[15] Heather Clancy, Why data privacy will become a competitive differentiator (18 November 2014) Fortune <http://fortune.com/2014/11/18/data-privacy-competitive-differentiator/>.

[16] Richard Grey, The places where Google Glass is banned (4 December 2013) Telegraph < http://www.telegraph.co.uk/technology/google/10494231/The-places-where-Google-Glass-is-banned.html>

[17] James Hutchinson, Proposed privacy laws put blinkers on Google Glass (31 March 2014) Financial Review <http://www.afr.com/p/technology/proposed_privacy_laws_could_make_9fjR6ab6xHVteBdI0LxaJM>.

[18] Viktor Mayer-Schonberger, Delete: The Virtue of Forgetting in the Digital Age (Princeton University Press, 2009) 141.

[19] Charter of Fundamental Rights of the European Union [2010] OJ C 83/389, art 8.

[20] Jeffrey Toobin, The Solace of Oblivion (29 September 2014) The New Yorker < http://www.newyorker.com/magazine/2014/09/29/solace-oblivion>.

[21]Bloomberg, How Big Data will Revolutionize US Health Care (3 February 2015) < http://www.bloomberg.com/news/videos/2015-02-02/how-big-data-may-revolutionize-u-s-health-care>; Jonathan Fisher, Who’s set to make money from the coming intelligence boom? (24 February 2015) Business Insider Australia < http://www.businessinsider.com.au/artificial-intelligence-how-to-invest-2015-2>; Josh Knowles, Stanford researches use big data to identify patients at risk of high-cholesterol disorder (29 January 2015) Stanford Medicine < http://med.stanford.edu/news/all-news/2015/01/researchers-use-big-data-to-find-patients-with-high-cholesterol-risk.html>; Jennifer Bresnick, Will the White House Chart a Course for Healthcare Big Data? (25 February 2015) Health IT Analytics < http://healthitanalytics.com/2015/02/25/will-the-white-house-chart-a-course-for-healthcare-big-data/>.

[22] European Parliament legislative resolution of 12 March 2014 on the proposal for a regulation of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) [2014] OJ C7-0025, art 79 (2a(c)), Amendment 188.

[23] Nikolaj Nielsen, Belgian MEP blames assistant for industry-scripted amendments (22 November 2013) EU Observer <https://euobserver.com/institutional/122205>.

[24] Bruno Waterfield, Tory MEPS ‘ copy and paste Amazon and Google lobbyist text’ (12 February 2013) Telegraph <http://www.telegraph.co.uk/technology/9865977/Tory-MEPs-copy-and-paste-Amazon-and-Google-lobbyist-text.html>.

[25] European Commission- Press Release, Commission proposes a comprehensive reform of data protection rules to increase users' control of their data and to cut costs for businesses (25 January 2012) <http://europa.eu/rapid/press-release_IP-12-46_en.htm>.

[26] Out-Law.com , Plans unveiled to remodel proposed 'one stop shop' regulation of data protection in the EU (2 June 2014) <http://www.out-law.com/en/articles/2014/june/plans-unveiled-to-remodel-proposed-one-stop-shop-regulation-of-data-protection-in-the-eu/>.

[27] Christian Wiese Svanberg and John Bowman, The Big Takeways from DPC 2014 (26 November 2014) IAPP <https://privacyassociation.org/news/a/the-big-takeaways-from-dpc-2014/>.

[28] Margot Horspool and Matthew Humphreys, European Union Law Oxford University Press 2012 7th ed .147

[29] NS v Home Secretary and ME v Refugee Applications Commissioner (C-411/10 and C 493/10) [2011] QB 102.

[30] BBC, Thousands of Britons seek 'right to be forgotten' (12 October 2014) < http://www.bbc.com/news/uk-29586700>.

[31] James Ball, GCHQ views data without a warrant government admits (29 October 2014) The Guardian < http://www.theguardian.com/uk-news/2014/oct/29/gchq-nsa-data-surveillance>.

[32] Vidal-Hall & Ors v Google Inc [2014] EWHC 13 (QB).

[33] Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208; Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era (ALRC Report 123)- 5. Two Types of Invasion(3 September 2014) <https://www.alrc.gov.au/publications/5-two-types-invasion/misuse-private-information>.