“If we required consent, then data would only be shared where consent was given,” writes the Australian government. So it plans to go ahead without your consent.
Yes, this is the “nuanced” position on consent in the Australian government’s Data Sharing and Release discussion paper [PDF] that was released last week.
“While consent is important in certain situations, the societal outcomes of fair and unbiased government policy, research, and programs can outweigh the benefits of consent, provided privacy is protected,” it asserts.
But the paper fails to justify that assertion.
It acknowledges that there were “robust discussions” about consent, and that consent “remains an area of debate and requires further public discussion”. But the only support for the “can outweigh” assertion to remove the need for consent is vague hand-waving and a smattering of unlikely claims.
Read more: Consent removed from Australia’s proposed data-sharing legislation
One example is the claim that the health research consent waiver in the Privacy Act 1988 was “accepted by the public” without consent being needed. Really? I challenge you to find an Australian who even knows it exists — apart from medical researchers and privacy professionals, that is.
There’s plenty of phrases like “unlocking potential”, “better evidence base”, “aspire to be a market leader”, and “connected and seamless user experience”, and all the other snake-oil squirtings we’re all sick of.
But where is the evidence that spraying this data across the whole of government, like some magical fluid, will be a good thing?
As tech analyst Justin Warren noted in a blog post, much of the push for data-sharing without consent has come from university researchers.
“In my discussions in these meetings, there are some researchers who understand the privacy and consent issues, but they are a minority, sadly,” Warren wrote.
“The researchers fervently believe they can improve public policy and programs by doing more research. Can someone point to research that supports this position? I mean, you’ve been doing research for decades, so surely there’s lots of good, systemic evidence that more data and research improves things on a public policy front, yes?”
He’s right about what he’s called Big Data Exceptionalism. For mine, I’ve written before about the blind optimism of this dangerous, faith-based ideology, and how businesses and governments need to tone down the lust for all our juicy private bits and bytes.
Privacy is a human right. Consent and control are core elements of privacy but that seems to have been forgotten. Again.
The discussion paper claims that for the research sector, “the legislation will provide access to data to advance knowledge and create better public policy.”
“Bullshit,” writes Warren.
“There is already plenty of good, robust data that is being systemically ignored: climate change, poverty, housing, monetary/fiscal policy, #robodebt, etc. A lack of data is not the problem.”
To that I’d add renewable energy, domestic violence, and drug law reform and so-called “pill testing”.
Warren lists many more problems with the discussion paper, but I won’t list them all here. I’ll just note two things.
First, the proposed new legislation, slated to be released in early 2020, seems to be toothless.
“We propose the Data Sharing and Release legislation not require consent for sharing of personal information. Instead, we are placing the responsibility on Data Custodians and Accredited Users to safely and respectfully share personal information where reasonably required for a legitimate objective,” the government writes.
When something goes wrong, a new National Data Commissioner would decide if there was a breach, and whether there’d be any penalty. If the commissioner isn’t interested in pursuing it, you’re probably screwed.
Also, the legislation “will not provide for merits review of data sharing decisions by Data Custodians,” so who will decide whether the sharing of data was even a good idea to begin with?
Must read: Public Transport Victoria in breach of Privacy Act after re-identifiable data on over 15m myki cards released
Second, this discussion paper is already a fancily-designed document. There’s even a glossy brochure titled Better Services, Better Decisions, Better Government [PDF].
It gives the impression that the whole idea is wonderful, that it’s all been figured out, and it only needs a few tweaks at the edges to become perfect.
But as Australians know all too well, the government is rubbish at protecting our personal data, rubbish at sharing data between agencies effectively or fairly, and rubbish at using the data it already has to develop evidence-based policy.
Couldn’t it address some of these fundamentals before proceeding?
No, once more the government has been seduced by the technology-porn of self-serving lobby groups in certain sectors, and by the need to seem “modern” without understanding what that actually means.
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