Gehan Gunasekara: Orwell's worst nightmares looming large

International moves are afoot for standards to keep 'Big Brother' out of our plethora of technological devices.

Road rules might be needed on the information highway. Photo / Getty Images
Road rules might be needed on the information highway. Photo / Getty Images

In George Orwell's dystopian novel 1984 , Big Brother was always watching you and depicted on posters with citizens being constantly alerted to his pervasive presence. Individuals were subject to random surveillance everywhere but most notably through a two-way television screen called the "telescreen".

Nowadays, of course, the telescreen has indeed arrived through being transmuted into the personal computer, mobile phones and numerous portable devices, the privacy implications of which Orwell could scarcely have dreamed.

The latest revelations in the US concerning its National Security Agency's surveillance programme known as "Prism", which allegedly allows the agency and the FBI direct access to servers of web giants such as Google, Facebook, Apple, Microsoft, YouTube and Skype, are therefore hardly a surprise. Also leaked are requests made (by secret court order) for access to telecommunications companies' connection log data.

One cannot be certain, but it appears the surveillance was confined to what is called "metadata", that is, records of numbers to which calls are made or texts sent and addresses to which emails are sent. The content of the calls, texts or emails was not itself accessed (although we know the technology exists allowing this) but this is hardly reassuring. Privacy scholars refer to the dangers of aggregation of data and the potential this affords for profiling of individuals and for the making of assumptions concerning their behaviour or intentions.

Consider this simple example. Assume I visit a website that provides information about a particularly malignant type of cancer. In the same week I phone my health insurance company and call my medical specialist. Anyone with the log information might reasonably draw inferences as to my medical condition without actually intercepting the content.

Location data gathered from mobile devices also enables individuals' movements and habits to be studied; hence "Big Brother" does really know where we are all of the time.

The companies concerned have all denied they co-operated in the surveillance. However, there is a good reason for this other than maintaining public relations. It is likely the requests were made under the US Patriot Act, a Bush-era law that largely remains intact.

Under its provisions orders can be made requiring companies and others to hand over documents or to grant access to records but are not permitted to disclose they are doing so to the individuals concerned.

This invidious practice led, a few years ago, to the Canadian province of British Columbia making it an offence to comply with any such order in respect of Canadian citizens. Canadian subsidiaries of American companies operating in Canada were put in something of a dilemma. Canadian firms outsourcing personal information to the United States were likewise required to give undertakings that they would not hand over Canadians' personal information to US authorities.

If two close neighbours and allies could have such differences over the treatment of personal information, New Zealand certainly ought not to be in a hurry to sanction any US surveillance.

Where metadata is concerned, however, the position is not so clear-cut. The reason for this was explained by the Herald as follows: "Because America is the 'world's telecommunications backbone' with most electronic data passing through the US at some point, it is therefore accessible to Prism's net." We only need to consider Facebook, Google and Skype to realise the threat to privacy this poses.

So is there a solution? Moves are currently afoot globally to harmonise privacy laws and enforcement. One of these techniques is through "Binding Corporate Rules" where a company can be made liable for privacy lapses on the part of any of its corporate limbs or partners.

However, any progress is likely to be inhibited by the Trojan horse posed by the co-opting of companies as spy agencies by government. Any surveillance on security grounds ought to be sanctioned by the Global Privacy Enforcement Network, an embryonic organisation of national privacy authorities as well as subject to stringent monitoring.

Only then will the trust necessary for the use of our myriad technological devices exist without the fear that "Big Brother" is indeed watching us.

Gehan Gunasekara is an associate professor in commercial law at the University of Auckland and advised the Law Commission in its review of the Privacy Act.

- NZ Herald

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