Balancing the Public Policy Drivers in the Tension between Privacy and Security

Abstract

The public expects that technologies used in electronic commerce and government will enhance security while preserving privacy. These expectations are focused through public policy influences, implemented by law, regulation, and standards emanating from states (provincial governments), federal agencies (central governments) and international law. They are influenced through market pressures set in contracts. This chapter posits that personally identifiable information (PII) is a form of property that flows along an “information supply chain” from collection, through archival and analysis and ultimately to its use in decision-making. The conceptual framework for balancing privacy and security developed here provides a foundation to develop and implement public policies that safeguard individual rights, the economy, critical infrastructures and national security. The illusive resolution of the practical antithesis between privacy and security is explored by developing some tradeoff relationships using exemplars from various fields that identify this quandary while recognizing how privacy and security sometimes harmonize.

The limits of (digital) constitutionalism: Exploring the privacy-security (im)balance in Australia

“…The balancing of security and civil rights is a ‘crucial legal conflict in the information society’ (Durante, 2013: 437). This regulatory ‘conundrum’ (Bagby, 2012: 1454) has a ‘rhetorical ring that fits the political agenda of extended law enforcement competences’ (Hildebrandt, 2013: 372). It has been argued that this conflict ‘explains much in the law enforcement, internal private security, counter-terrorism, cyber-security and critical infrastructure protection debates’ (Bagby, 2012: 1454).…”

“…This regulatory ‘conundrum’ (Bagby, 2012: 1454) has a ‘rhetorical ring that fits the political agenda of extended law enforcement competences’ (Hildebrandt, 2013: 372). It has been argued that this conflict ‘explains much in the law enforcement, internal private security, counter-terrorism, cyber-security and critical infrastructure protection debates’ (Bagby, 2012: 1454). However, the privacy-security relationship may not be a ‘balance’ but rather a ‘trade-off’ with the image of the scale used to justify the sacrifice of liberties (Hildebrandt, 2013).…”

“…Human rights are said to be incommensurable, but real-life scenarios of conflicting rights require some sort of balance to be struck between them, especially in the judicial context (McCrudden, 2008). However, there is limited guidance about how to attain a suitable balance between rights, or indeed, what this would represent in practice (Bagby, 2012). Cost–benefit analyses imply precision and quantifiable methods of weighting interests (Hildebrandt, 2013).…”

“…Yet human rights do not lend themselves easily to quantification. For this reason, it has been argued that this ‘calculus is highly complex’ and simultaneously ‘overly simplistic’ (Bagby, 2012: 1453, 1454). Some constitutional courts have adopted ‘proportionality’ analyses to resolve conflicts of fundamental rights (i.e., whether the restriction on a right furthers a legitimate aim in a rational and proportional fashion) (McCrudden, 2008).…”

“…Yet these analyses have been criticised for constituting a misguided quest for objectivity and precision, where instead courts should be focusing on the moral issues underpinning the conflict of rights (Tsakyrakis, 2009) or engaging in more principled and pragmatic decision-making (De Schutter and Tulkens, 2008). In the absence of ‘determinist or formulaic balancing methodology’, political pressures may be the most significant influence in determining what the outcome of the balancing exercise means for policy (Bagby, 2012: 1453).…”