Privacy – Where Are We Now?

For some time before the election in May there was a convergence of quite varied interests on privacy issues, and this convergence now seems to have disappeared, or altered in a way not yet clear or visible.

The public debate today is dominated by the budgetary question of the structural deficit and the cuts to public services that are required to remove or reduce the deficit. The Big Ticket privacy issues (ie the ID card and ContactPoint) were dealt with by the Coalition quite rapidly, but is that it, for the moment at least?

The key connected debate is on the Smaller State and/or the Big Society. The relationship between them isn’t clear, but while the State might be on the retreat, that doesn’t mean it will be any less privacy invasive for those who still come within its ambit (most of us). There will still be plenty of reasons, for instance, for sharing data, and it isn’t clear what the new Coalition thinks about an old issue like that.

The Big Society is clearly meant to sound optimistic and progressive, and intended to take up the spaces left by the retreating State, but as a slogan it has an unfortunate Orwellian resonance. However, the Young Foundation has recently published a report “Investing in Growth” which provides some imaginative ideas and reference to ongoing projects on precisely this theme, including the Mydex project. Mydex is associated with this blog, and has just published a White Paper “The Case for Personal Information Empowerment: The Rise of the Personal Data Store”. This is a must read.

The Review of the Directive is ongoing, and the papers issues by the Commission and the Ministry of Justice both make interesting reading. At the risk of repeating myself, the problem with the Directive and associated instruments seem to me to be (a) that it is a Directive, with the associated abstractness, legalism, and a vacuous conception of fundamental rights, (b) that the regulatory scope is too wide, and (c) that there is an underlying uncertainty about the nature and definition of the regulated object. The hot issue of the new technologies is really, it seems to me, a matter of (b) and (c) combined, and the difficulties here were in evidence well before the arrival of the new technologies. Hence I don’t think it is a “new” problem in quite the way it appears to be.

It is of course possible that the new technologies do raise entirely novel questions, but if you persist in seeing these novel circumstances in the wrong way, then you won’t be able to see what the novel questions and problems actually are.

The Information Commissioner seems to have adopted a stance somewhat different from his predecessor, and the overtones of a Privacy Commissioner appear to have been exchanged for the less dramatic stance of a classic Regulator. He has some big sticks in data protection, for wielding on the grosser lapses, which while important and new, are in another sense quite routine. That is what a classic Regulator does. He will certainly need some bigger sticks than he has got at the moment to make Government Departments hurry up in responding to FoI requests!

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