Privacy Justice

Transcript

Good evening everyone and welcome to the third event for the Justice Talks series. Tonight, as you all know, we're focusing on issues around privacy and justice.

My name is Jane Wangmann and I'm one of the co-directors of the Brennan Justice and Leadership Program. I'm joined tonight by my co-director from the Law Students' Society, Erika Serrano, who will assist at question time in organising speakers, and Crystal McLaughlin, our program administrator, and most importantly, our special guest and presenter for this evening, Dr Sacha Molitorisz.

Before we start the proceedings, I'd like to acknowledge the traditional owners of the land on which we are sitting and participating in this Zoom session. I'm coming to you from the land of the Gadigal people of the Eora Nation and I pay my respects to their elders past and present. I acknowledge that for some of you, you might be joining us from other traditional lands, and I acknowledge the traditional owners of those lands. I'd also like to extend a very warm welcome to any Aboriginal and Torres Strait Islander people participating in this session.

Before I introduce our guest speaker, just a couple of housekeeping items. As I'm sure you're all aware from many Zoom sessions, you can hide or show your camera and mute or unmute your microphone. We ask that you mute your microphone when not speaking, to prevent background noise from distracting the speakers. If your bandwidth allows and you feel comfortable, it would be great if you could have your camera on, especially when Sacha has finished sharing his slides and particularly if you are asking a question. This makes it feel like a more interactive event and it's great to see friendly faces when you're talking, but only do so if you feel comfortable. If your camera starts freezing, just switch it off to free up bandwidth.

Lastly, a very important request: in order to get your five ROJ points, please put your full name in the chat box so the Brennan team can record your points. You can also use the chat box during the session for any questions you might have regarding privacy as Sacha is talking, or about the Brennan program more generally.

Now that I've dealt with those housekeeping issues, I'd like to introduce our special guest and key speaker, Dr Sacha Molitorisz. Sacha is a Postdoctoral Research Fellow in the Centre for Media Transition here at UTS. The Centre is an interdisciplinary research centre involving the Faculty of Arts and Social Sciences and the Faculty of Law. Sacha joined the Centre at the beginning of 2018 and his research and teaching areas include digital privacy, trust in the media, and media and legal ethics. Prior to working at UTS and undertaking his doctoral studies, Sacha worked at the Sydney Morning Herald as a reporter, blogger, editor, reviewer and senior features writer. Since 2012, Sacha has taught Global Media at NYU in Sydney. At the beginning of this year, Sacha published his book 'Net Privacy: How We Can Be Free in an Age of Surveillance', which is based on his PhD research applying Kantian ethics to internet privacy. Reviewing this book, Professor Jason Schultz from NYU School of Law noted that Sacha "lays out a compelling case and helps us to understand that now is not the time to panic but instead to be pragmatic and political". Sacha describes his professional goal as finding the answers to the question of how, in a digital age, we can shape a more ethical media landscape. It's a great pleasure to have Sacha here tonight. I heard Sacha earlier this year when he launched his book and we're in for a very informative and stimulating evening. Thank you, Sacha.

Thank you, Jane, that's a really generous introduction, I really appreciate it. Jane and I studied together all those years ago at UNSW, so it's really nice for our lives to intersect again. I'm fairly new to academia, but thanks Jane, and thanks to everyone for asking me along. It's great to talk on justice and to try to bring some of the things I've been working on into relationship with justice and to think about it in those terms. Hopefully what I talk about will be coherent, because I'm going to try to bring a few different strands of thinking together. One is privacy, which Jane has already mentioned, and the other is news media, and hopefully I can bring those two together in a way that makes sense and sparks some conversation for later.

The first thing that's interesting to think about, particularly with privacy, is what we're doing right now. I'm here in my living room. Earlier, some of you may have heard me talking about acoustics in this room compared to other rooms in the house. We're doing all this work and communicating with other people, all this communing in a way from our homes in a lot of cases. Crystal's in at the office, Jane I think you're at home, right? So we're all in these different spaces, and what that does is create a new configuration of what it means to be private, what privacy means and what public means as well. Everything's been thrown up in the air to some extent, and certainly what we've always thought of as private has been challenged. Over the past few months, with coronavirus, we've lived much more in our houses, connected via Zoom, done classes via Zoom, done our work via Zoom, and used all these other things like Microsoft Teams, all these digital platforms and services. The way that changes privacy and what is private and what is public is really interesting and has all sorts of flow-on effects.

So I'll just use that as a bit of an intro to what I'm going to talk about. I'll share some slides now if I may. Here we are. Also, while I'm talking, please do feel free to interrupt. I won't be able to see the chat, but if you put something in the chat, maybe Crystal or Jane can alert me. But if you just want to speak up, I'm not at all the kind of speaker who doesn't like interruptions. If you have a point to make or a question to ask and it's right on point, please do interrupt.

All right, that's me. I'll tell you a little bit more about myself very quickly after I tell you what I'm going to talk about: justice plus privacy, justice plus news media and digital platforms, and then finally I'll wrap it up by talking about how we can be free even in a time of coronavirus. Three points that I'd suggest don't really look very linked, but hopefully there'll be some sort of links we can see by the end. Me—I studied law and English literature, did a BA and LLB at UNSW, then went off and became a journalist. I never practised as a lawyer. I worked mainly as a features writer, did a lot of popular culture writing—TV, movies and so on. Too good to be a job; it wasn't really a job, too much fun. Then, partly because of the implosion of news media, I reconnected with law, reconnected with academic interests, and embarked on a PhD into the ethics and law of digital privacy. That led to my job with the Centre for Media Transition, where I've been for nearly three years. The Centre is very young, only just started before I got there, and it's housed in the Faculty of Law, but there's a co-director from journalism at UTS, so it's this kind of news media/law centre, which gives us the scope to be very interdisciplinary. My own specialty is under those three areas: ethics, law and media. Each of those is pretty big on their own; when you bring them together, they get even bigger. So, some questions under the topics of ethics, law and media are what I specialise in.

All right, so that's the book that Jane mentioned. The best words in there are on the cover by Shaun Micallef. He said, "Bookseller website algorithms will recommend this book because they know what you like. I'm recommending this book because I like it." I just quote that because he's a funny man.

So, privacy. Let me talk a little bit about privacy. I'll tell you about three people—some of these you may have heard of: Emma Holten, Ashley Madison, Ed Snowden. One fictitious or not real, two real people. Emma Holten is a very inspiring, impressive Danish woman who a few years ago woke up one morning to find all sorts of intimate images of herself all over the internet. She found out because she suddenly received all these emails from strangers. You'll recognise that as probably not a completely unfamiliar story—it's something that happens very often. It was initially dubbed "revenge porn"; we now know it as image-based abuse, that's what the law knows it as. She responded to this by actually going out and taking some more photos after a while, with her consent, and sharing them with her consent as a form of taking power back.

A sad reality of coronavirus, just to mention as an aside, is that image-based abuse is on the rise. We're seeing all sorts of, apart from the obvious negative outcomes of the virus and the pandemic, we're getting things like this: complaints—people sharing intimate photos and videos online as a kind of retribution for ended relationships—are up by 245% compared with the same period last year. That's terrifying.

The second person I want to tell you about is not a real person: Ashley Madison. It's a website. The tagline is "Life is short, have an affair." You may have heard of it—it's an infamous website. The reason it's really interesting in privacy terms is because hackers broke into the Ashley Madison database to find out who the men—it's mostly men who use the site—who they were, so they could out their identities. In the wake of that, there's at least one person who committed suicide; I think there were several in the end. So it's a very interesting, ethically complicated story about privacy and modern data breaches and data protection.

Third, Edward Snowden. No doubt you've heard about him and his revelations when he emerged in 2013 in a Hong Kong hotel room to tell a handful of journalists about the documents he had taken from the NSA, the National Security Agency. He argues that what he discovered while working for the NSA was this widespread government surveillance that was unconstitutional, unethical, and breached Americans' privacy in a way that it shouldn't be breached, so he needed to tell people.

So we've got those three people. What do they tell us? They tell us that we're living in this digital world—no surprise—where privacy is under such threat. From individuals, in the case of Ashley Madison and with a big breach in 2015 from hackers and phishing scams. It's also under threat from companies—Uber, Facebook and Google and the impacts on data of the way their services work. Acxiom, I don't know if you've heard of them, but that's a data broking company. All these companies like Acxiom exist in the background to profit from the exchange, the sale of personal data and people's information. You've probably heard the phrase "data is the new oil".

Then we get governments—NSA, GCHQ, ASD (that's the Australian Signals Directorate), and so on. So you're getting privacy challenges from a lot of different directions, and they have different ramifications naturally. You might have heard of this idea of the Panopticon. It's a metaphor that's evoked quite often in relation to digital technology. The idea of the Panopticon dates back more than 200 years. Jeremy Bentham, lawyer and philosopher, came up with this idea of a prison that would be different to the ones that existed in his day. In this one, you would have the guards in the middle, in a watchtower centrally located, and all the cells around the outside. This meant that the guards would be able at any time to look into any cell, so prisoners could be watched at any time and they never knew, given the particular design of the guard station and the blinds and so on, if they were being watched or when they were being watched.

So what we get now, really, you can characterise as Panopticon on steroids or Panopticon 3.0. It's much more than the Panopticon. We have that initial design for a prison, which in fact was then realised in many countries. But what's going on, which hopefully you can see from the examples I gave, is that the viewing is not just guards watching prisoners, but it goes in every direction—prisoners watching other prisoners, prisoners watching guards—the viewing goes in all directions. The thing about digital data that's collected is that if you have enough of it, you can see into the past and arguably you can make certain predictive assessments as well, which are very powerful.

This brings us to the first poll. Crystal, would you be so kind as to launch poll number one?

Of course, Sacha.

Privacy is: my favourite small bar in Newtown, an 80s synth band, a fundamental human right, or dead. I don't know if this allows you to answer more than one at a time—I think not—but you can try. What have we got here? There is a considerable number of people who are saying it's dead—a quarter of you, very interesting. A fundamental human right—most of the rest of you, so nearly three quarters. I haven't been to that little small bar in Newtown—it's too private for me. That's very revealing. Is anyone bold enough to speak up about why they think it's dead?

Should I end the polling now and show everyone the results?

Yeah, why not. Great. Who said it's dead? I won't put you on the spot. I'll just keep talking.

I've heard from a lot of people over the years, including students, about privacy being dead, and I'm not surprised to hear it. I don't think it is, but certainly there is a significant trend putting immense pressure on the privacy that we have and on the right to privacy. So there's reason to feel fatalistic about it, but I don't think we need to be—quite the opposite, I think we need to be optimistic and positive.

I'll close this poll. Okay, so from there I'm jumping—hopefully deftly—into topic number two: news media and digital platforms. This is another area we work at, at the Centre for Media Transition, and definitely an interest of mine as someone who worked at the Sydney Morning Herald and at smh.com.au, and watched it evolve from 1994 when I started till 2012 when I left. Over that time, of course, the internet and the World Wide Web became huge, and that's where most media now plays out—that's where the action is.

You may have heard of this: the Digital Platforms Inquiry of the ACCC, the Australian Competition and Consumer Commission. In the middle of last year, 2019, it handed down its final report, making a whole lot of recommendations. In late 2017, the Federal Government charged the ACCC with conducting an inquiry into the impact mainly of Google and Facebook on media. So what's happening here? What is the impact of Google and Facebook on news media? What is their impact on advertising? What is their impact on media more generally? Eighteen months later, they handed down this final report. I was lucky enough to be quite close to the process and do some research on their behalf as part of the process, and I was incredibly impressed with how they went about the task and with this report, which is more than 600 pages long.

You may have had a chance to look at the first 30 or so pages, because I think it makes a lot of very powerful points and recommendations. One of the very important conclusions they came to very early was that they couldn't look at the impact of digital platforms without thinking about data—the use of data. Here's a screenshot from one of the pages of the PDF version of the final report. This is a graphic that I think explains this really well. The ACCC realised that competition, which is what its job is to look at, and consumer protection, which is its job as well, to look at that in a modern digital media ecosystem, it needs to think about data protection and privacy. Those three are inextricably interlinked. You can't think about where Google sits in the marketplace or where Facebook sits in the marketplace without thinking about data.

This point on the bottom right, where it says "competitive data-driven markets competing for well-informed consumers on all dimensions of price and quality, including level of privacy protections"—that's at the very centre of that graphic and explains why the ACCC and many others think we need to think about data when we're thinking about these issues.

It came to these recommendations—I won't read these out—but there's a whole list of recommendations the ACCC made about strengthening Australia's privacy law. From my perspective, they're very good, very important recommendations that need to be taken up. There are more: that was just the Privacy Act. The ACCC recommended broader reform of Australian privacy law. It recommended that the Privacy Commissioner implement a new privacy code for digital platforms, that we implement a statutory tort for serious invasions of privacy—something the Australian Law Reform Commission has recommended on numerous occasions—and that we have these final two prohibitions: a prohibition against unfair contract terms and a prohibition on certain unfair trading practices.

So the ACCC has made all these recommendations about how we ought to reform privacy law, and the government has started acting on those. There is wide-scale privacy law reform underway, including the development of a code and a look at the Privacy Act again, and more.

Meanwhile, the ACCC also recommended a number of measures to help news media, because news media is in a pretty bad state. Recommendation seven was to designate digital platforms to provide codes of conduct governing relationships between digital platforms and media businesses to the ACMA, the Australian Communications and Media Authority. It recommended stable and adequate funding for public broadcasters, grants for local journalism, and also tax settings to encourage philanthropic support for journalism.

One of the things the ACCC realised is that journalism is in dire straits, and part of the problem is that that goes hand in hand with the success of the digital platforms—and that's not just a correlation. The ACCC saw that there was some imbalance there, and there was some causation.

Here's the simple truth: journalism currently is in crisis. The million-dollar question is just how much responsibility do Google and Facebook and other digital platforms bear? Things are getting worse. Why are things getting worse now? Well, the virus. Things were bad already, and you can just imagine the scenario of a local paper—pretty much any paper, but it's more acute in local and regional areas. Picture a small town paper: all of a sudden there's no local restaurants trading, there are no events, there are no artists coming through playing gigs, so all of a sudden the advertising that was left following the rise of the internet just disappeared.

There have been titles shutting down one after another over the past few months. More than 100 titles have shut down in Australia, either temporarily—where they're just suspending, they say—or permanently. In some cases, print editions have closed and digital-only newspapers remain. Regional and local are particularly hard hit. I've done some research with a few colleagues that looked at jobs data from 2012 to 2020, and it just underscored all these points. There were some interesting findings, including a surprising increase in job ads to 2016, but there's been a terrifying gender inequity that's tied up. Sometimes these consequences are a lot less obvious, and the data brought it out clearly. Journalism skills are shifting too.

One of the big things you might have heard of is this news media bargaining code. Out of the Digital Platforms Inquiry, one of the recommendations was that digital platforms and news media businesses need to come up with a code whereby they can address the unfair value exchange, and ultimately, digital platforms can pay some money to news media. The government, back in April, said this is happening too slowly, we're going to make it mandatory, so it fast-tracked the process. Just in the past couple of weeks, the ACCC released its draft legislation for the code, and Google and Facebook were not very happy. Facebook said, "If this goes ahead, we're going to pull all news from our platform," and Google was pretty unimpressed too. The government wants to bring this in by the end of the year. This is the issue: is there a fair value exchange? If not, how do we make it fair? The tech companies—this word was used—it's a shakedown of Google and Facebook.

That brings us to poll two. Crystal, would you be so kind?

Trying to work out the polls—here we go, there's a drop down. I thought the first one was so good we should do it again. You're too kind, here we go.

The mainstream news media is: generally trustworthy, generally untrustworthy, a mix of trustworthy and untrustworthy, or "I wouldn't know, I never consume any mainstream media." It's great to see that there are at least two of you in each of those categories.

We'll just close the voting now—last votes—then we'll share them for you. Great. Does anyone care to add anything, particularly people who are in the "generally untrustworthy" or "never consume any mainstream media" categories? What are some of your objections?

Hi, personally I put it in "mixed". I think that with the rise of independent media online, there's been a need for conventional media to increasingly sensationalise its work to try and keep up with independent media online. For example, government-funded organisations such as the ABC and a lot of Australian media that remains on TV does have that regular or normal journalism, as I'd refer to it, as opposed to sensationalised journalism. But with the rise of online and decentralised media, in order to compete, an easy way of going about it originally would have been through censorious means—so, for example, your BuzzFeeds, your Vices, etc. As that's propagated, it goes less to the legitimacy of the work and more to the emotional response you can get from your audience.

Yeah, great, thanks for sharing that, Max, that's a great response. I remember conversations at the Herald on exactly this point, where there was the hard copy newspaper, which is being read by fewer and fewer people. Meanwhile, there was the same thing online in a different form—because initially that's what it was, the online form was seen as the online version of the newspaper. Only relatively recently has that changed. There were discussions about, "Hang on a second, the stuff that works online is the emotional stuff," and editors started chasing that. So the online then did change in tone from the hard copy version, and it was more lowbrow and emotional, and in some cases just not as good. But yeah, that's a very interesting point you raise.

Just in the interest of time, I'll keep going.

Just while I've got the mic, I'll ask everyone: if you haven't posted your name as it appears in CareerHub or your student number, just pop it in the chat so you get your points. There's a few people that haven't. There's "iPhone" and "Natasha Guest"—we just don't know who you are. There's actually a question from Richard in the chat box: "Sacha, thanks for speaking with us today, and basically wondering if you could define privacy?"

Yeah, okay, just a small question there. We could spend a lot of time talking about this. Philosophers and theorists have argued about this a lot. They've argued about this question: what is privacy, and also why it matters, or even whether it matters at all. To go to that second question first, there have been some philosophers, including Plato, who argued we'd be better off without it—we shouldn't have it. Privacy is really just something to protect us from embarrassment and shame, and we're all human and share ultimately the same fundamental reasons for living and motives and so on, so without privacy we'd be better off. So it's worth thinking about why we value it, and I think we need to mount that case pretty strongly.

But to your question about what is privacy: philosophers and theorists tend to come up with two main ways of thinking about it. One is it's about control—privacy is me controlling the limits of what I want to share about my body, information about myself, about my relationships—what I want to share. So control is one of the models. The model I'm actually more attracted to is the model that says privacy is about access—limitations on access. That access can sometimes be determined by control, so sometimes it's where I say, "This is what I share, this is what I don't share," but sometimes it's drawn by something else. For instance, the law might say, "No, the line is drawn here—you're not allowed to go naked on most beaches, you need to maintain swimwear." That's what the law tells us at most Australian beaches. To me, that shows that privacy is not always about my personal control and me determining where the line should be drawn. So access, to me, is the key word, but I'm happy to talk about this issue for the rest of the session.

I might move on quickly if I can to the last part of my speaking. Hopefully to tie some of these thoughts together: how can we be free even in a time of COVID? And not just free, but well-informed by a good, functional, trustworthy news media, and not just free individually, but free together. That's something I want to ponder on—free together.

Contact tracing—the COVIDSafe app. I'm sure you have a basic idea of how it works, even though there was a lot of misinformation about it too. Having done some focus groups into privacy, a lot of people misunderstood the way the COVIDSafe app works. But this is the basic idea—here's a graphic from the BBC. It was launched in April. To me, this is such a great illustration of the need to start to think about privacy in individual terms, but also as more than that, and also how it relates to other rights and freedoms that we have. This is what coronavirus is bringing out in so many different ways.

I'm going to throw this phrase at you: the idea of relational privacy—the idea of my privacy as not just being about me. One clear way I can bring that out is by talking about something like DNA testing. If I send off a sample of mine to some company that's going to tell me about my family tree—my Norwegian or Swedish or German or Brazilian roots and how they all interconnect—that test may also reveal all sorts of predispositions to diseases, but it will also reveal other people. It will reveal my kids and other people in my family—their predisposition to certain diseases. So when I'm making that decision to send off a sample of my own DNA, I'm actually sending off information and data about other people around me.

To me, what that reveals is that privacy really shouldn't be thought of just as me and my right and this kind of self-contained bubble. It needs to be thought of as something much more complicated—the way that we all relate to each other. Privacy, in fact, is the way that we make our connections with other people—what we share.

With that concept in mind, have a think about a group of friends—here's a drawing I found online. We can imagine these people, and they're all on some social network, except maybe this guy on the left with the crutch—he doesn't want to be on this social network. The kids are too young, they're not allowed, maybe the older kids are on the social network. But if the rest of these people—the five adults—let's say four people are on the social network. If those four people are on the social network and they're talking about everyone in that group who's in this picture, those others will be revealed as well—they might be in the background of photos or just in conversations. So this social media network can get details, data, profiles about all the people.

This is what can happen online so easily—we're sharing information about ourselves, but also at the same time we're sharing information about other people. This is what makes it really tricky, and to me, this is perhaps the really big challenge about privacy and data and how we're going to protect it properly and duly in a digital age. So much data can be inferred—this is what happens online. You might have heard the phrase "shadow profile". A shadow profile is really what I've just described—someone who isn't on a social media network will have a profile on that social media network. The phrase "shadow profile" is something that Zuckerberg and Facebook have been quizzed about a number of times. They say they don't have them, they don't like that phrase, but they have admitted to collecting data on non-Facebook users for security purposes. I'm not quite sure what the distinction is.

On that point of inferred data, this is a study from a number of years ago about what you like online revealing a lot of other things. So, likes—when you like Colbert or Harley-Davidsons—you will be revealing things such as your sexuality or your drug use or your politics, things that you don't realise you're sharing. Cambridge Analytica, of course, is perhaps the high point of this story about relational data and about the way that people can be manipulated. We don't know exactly how much people were manipulated or what impact Cambridge Analytica had on, particularly, the 2016 election. There is a chance that Trump is in the White House as a result of the misuse of personal data.

So what does any of that have to do with justice? Well, a lot, I think. Privacy invasions, I've been arguing, are relational—you can get these broader harms. Cambridge Analytica, if I didn't go into the specifics of the example, hopefully you have a bit of background there. Privacy invasions can harm society and democracy. In justice terms, this is very important too. There's a lot of emerging research about the privacy impacts being worse for disadvantaged groups—isn't that always the way? So you have this dystopian scenario that perhaps we're moving towards a situation where privacy is something that rich people can afford and others can't.

News media—well, good journalism, that's how we hold people to account, how we hold power to account, and we expose injustice, so clearly there's a link. Just from last week, thinking about the two journalists—the foreign correspondents in China—who were sent home, all the arguments around there, why it was so important that they were there in the first place. Perhaps we should—what I would encourage you to do is to start thinking about privacy and all rights perhaps in new ways. So that's where you come in.

Instead of the right to privacy, let's challenge ourselves to think about the duty of privacy. You don't get rights unless people are observing the duty, right? My right to free speech means nothing unless there are other people who are willing to respect my right to free speech. It's the same with every right, every freedom, every interest—we need the corresponding duty here. I think there's been too little focus on the duty of privacy and the duty of informing ourselves. I'd say let's protect privacy not just for ourselves but for others. Support law reform, and pay for news—that's a good one too. In this digital age, where we're used to consuming content for free—music, films, news—think, "Hang on, I should pay to support the journalism I believe in," whatever that is.

And that's it, really, and I'll stop sharing now.

Thank you, Sacha. Over to you, Erika.

No, I was just going to say, maybe to kick off some questions, I've asked a few students about things that they've thought were interesting, and one topic that you actually did touch on was revenge porn. So they were saying, what are your thoughts on the current approach to regulation and dealing with the matter?

Yes, so the short answer there is that we have always had laws, or we have had for a long time, laws that could be used in those cases, but they were very, very rarely used to prosecute image-based abuse. A number of jurisdictions, including New South Wales, have specific laws that they've brought in in recent years, under which, in a number of jurisdictions—whether you're talking about Canada or the UK—people have been prosecuted and sent to jail. So this is one of those situations where legislatures in many countries have decided they need to enact new laws, and the existing laws, even if they can be stretched to cover this