Busting Data Protection Myths Part 3 - Transparency and Privacy
There is a myth that privacy, on one hand, and access to information for the purposes of accountability, on the other, are competing values. I have heard many times that ‘freedom of information and protection of privacy’ is an oxymoron or that they are a contradiction in terms. The comments result from a failure to understand what these concepts actually involve. Both elements are complimentary and necessary for a functioning democratic system of government and the protection of the rights of individuals.
Our office has oversight of both types of activity by virtue of the Freedom of Information (Jersey) Law 2011 and the Data Protection (Jersey) Law 2018.
Accountability is about holding public officials to account for the expenditure of public funds and (in the data protection world) for holding private businesses to account for their processing of personal data. It requires providing access to information concerning the decisions that public officials make and the personal data that companies process. Privacy is (amongst other things) about protecting the personal information of individuals. I think it is informative to examine the French term for privacy: la vie privée, which translates literally as private life. Public officials must be accountable for their decisions as public officials. On the contrary, all individuals, including public officials, have a right to a private life and to protection of their personal data.
Some people mistake the concept of privacy as protecting all types of confidential information. While certain general information can remain protected from disclosure in response to access requests made by data subjects, this has nothing to do with the concept of privacy. Privacy does not apply to confidential business information or communications subject to legal privilege. Privacy generally involves people in their personal, not professional, capacity.
Individuals should have a right of access to information created and managed by public authorities and to their own personal information. This does not include the personal information of officials; the individuals’ families, friends or neighbours; or that of celebrities. Protecting the private lives of individuals does not compromise accountability nor is it necessary to invade the privacy of individuals to ensure that public authorities or companies are accountable.
In fact, an individual’s rights to privacy and to access information are necessary to protect their rights in relation to public authorities and companies. Knowledge is power. When one party has knowledge of confidential information about another party, but not the other way around, it affects the balance of power between them. For democracy to function properly, it is crucial that individuals have access to information about the activities and decisions of public officials. It is equally crucial for individuals to understand what public authorities know about them. Public authorities and private companies possess distinct advantages over individuals in terms of financial and informational resources. Accordingly, individuals require the assistance of access to information and data protection laws to help to address this power imbalance.
A case study example
Here is how an innocent individual can suffer as a result of this power imbalance. Imagine a university student in England with a name of Middle Eastern origin, because his great grandfather fought for the British during the First World War and then immigrated to England. The student’s name is the same as someone else who is unjustifiably on a terrorist watch list, and whose birthdate is almost the same. The student is on a scholarship to a university and in his penultimate year of study in politics and Middle Eastern studies. His parents run a large agricultural farm that his great grandfather had established. The student sometimes assists with the running of the farm, because it is in danger of falling into administration.
A week before the final exams for the year, a security services agent decides to undertake a standard routine check up on the terrorist with the same name. Through an administrative oversight, the agent mistakes the student for the terrorist (he misreads the date of birth) and places the student under surveillance instead of the terrorist. The agent is able to monitor the student’s internet browsing. The agent notes access to websites on Middle Eastern conflicts, terrorism, and bomb making that the student has used for research as part of his coursework. The agent also monitors the student’s movements and obtains video recordings of the student exiting a garden centre with a large supply of an industrial fertilizer for his parents’ farm, which is also a common ingredient in making bombs.
The agent informs the police who arrest the student and invoke the Terrorism Act that them to detain someone suspected of terrorist activity without charge for up to 28 days. The student is detained (despite protesting their innocence) and on the 27th day of their detention, the security services discover their error and release the student without charge. In the meantime, the student has missed his final exam with the result that he has failed his year of courses, requiring him to repeat the year. This results in him losing his scholarship. He also gains an undeserved reputation as a dangerous terror suspect. The incident also has repercussions for his parents that result in them losing the farm. The student’s only potential recourse is an expensive wrongful arrest and unlawful detention claim which he cannot afford to pursue. The police and security services also decline to confirm the student’s explanation of the matter to the university, citing national security reasons.
This is just a fictional account for the purposes of this blog, but it does represent serious issues that individuals can face and to help demonstrate that the unchecked use of highly privacy-invasive law enforcement powers can have devastating consequences for innocent people. That is one reason why it is important that there be rigorous controls in place on the processing of personal data including transparency about how it is used by public authorities. Without those checks and balances, we risk having our society degenerate into a Kafkaesque dystopia.
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