Should Criminals Have a Right to Privacy?

Introduction

BigTechs are in the process of implementing E2E encryption on several platforms. Once it is fully implemented even BigTechs won't have a decryption mechanism to view information being exchanged over their platform.

On April 24th 2024, the Commissioner of the Australian Federal Police (AFP), Reece Kershaw and the Director General of the Australian Security Intelligence Organisation (ASIO), Mike Burgess gave an address to the National Press Club of Australia. (https://www.youtube.com/watch?v=ysi1aIY4NkU).

The address focused on the relationship between online safety, technology & social media companies, end-to-end encryption and artificial intelligence. In the address, both Kershaw and Burgess ask tech companies to work with authorities to prevent the use of their platforms for cyber harm. They also comment on the use of end-to-end encryption and privacy.

In his speech, the AFP commissioner, Reece Kershaw, puts forward the following argument: "We recognise the role that technologies like end-to-end encryption play in protecting personal data, privacy and cybersecurity, but?there is no absolute right to privacy." ? Similarly, the ASIO director general, Mike Burgess, stated "Privacy is important but not absolute".?

In this article I am sharing a summarised view of my analysis on ASIO & AFP’s ask and why it must be respected.

“I would rather be harmed than let a criminal forgo their right to privacy”(No one said it, Ever)

Not respecting ASIO & AFP’s ask is like accepting criminals' rights to privacy and freedom of speech.

The Risk

According to World Economic Forum, for the next two years, AI-Generated misinformation and disinformation is the number 1 Global Risk and Cyber Insecurity is the 4th Global risk. These risks remain in the top 10 during the next decade. (WEF, 2024). ?

Synthetic content (such as AI) will manipulate individuals, damage economies and fracture societies in numerous ways over the next two years. (WEF,2024).

WEF also gave us this warning that some governments will act too slowly, facing a trade-off between preventing misinformation and protecting free speech. (WEF,2024)

The spread of misinformation would amplify with the help of AI-generated content and end-to-end encryption is imposing severe challenges in the detection of AI-generated misinformation, disinformation and other harmful content. As Mr. Kershaw said in his address, it is like allowing criminals to plan attacks in a safe place that cannot be accessed by security agencies.

Historical View

This is not the first time ethical and legal standards are challenged by new modes of communication:

Socrates thought writing was a deceptive and defective way of communicating. (O’Neil, 2021).

It took human beings over two centuries to develop regulations and legislation for printing (O’Neil, 2021).

Freedom of expression and privacy became important after WW2. Both of these rights are included in the Universal Declaration of Human Rights and in the European Convention of Human Rights (O’Neil, 2021). Both are qualified rather than unconditional rights (O’Neil, 2021).

According to the Office of the Australian Information Commissioner "Your Right to privacy is not absolute" (OAIC, 2024a). Attorney General Department clearly states on their website "Your right to freedom of expression is not absolute" (AGD, 2024)

From legal perspective, both of these rights can change depending on the situation. Big tech must establish Lawful access solutions that can be applied to the targeted situations (Burgess,2024). When stakes are high, people choose security over privacy for the greater good.

Philosophical Perspective

Unbounded liberty can be very dangerous and life without any rules at all would, according to Hobbes, be “solitary, nasty, brutish, and short (Browne, 2018)

Many philosophers agree that citizens must transcend their private concerns when they take part in the political process (Stanford, 2018)

Most of philosophers such as Kant, Locke, and Hobbes agree that societies need laws and structures, defined by governments to function.

ASIO & AFP’s ask seems ethical and lawful from a utilitarian point of view, once accepted, only a few suspects would have to forgo their privacy for the safety of everyone.

Social & Legal Perspective

People tend to make decisions based on their personal needs, regardless of the negative impact it may have on others as documented in “Tragedy of the Commons” by Hardin (Spiliakos, 2019).

ASIO and AFP request seems to be more aligned with Rousseau’s perspective on the Social contract, which states that it doesn’t have to mean sacrificing our freedom to a government in the hope for security, simply because so much can be gained by co-operating as part of a society. (Rusling, 2024)

This ask is about taking Responsibility and Accountability by BigTechs who have developed & Own all the communication infrastructure in use today. This is not new, a similar request was made in the earliest known written laws. If a house collapses, the builder of the house shall be accountable (Code of Hammurabi, 1755–1750 BC).

BigTech & Social media have been involved in, Influencing elections(Bond et al, 2012), Overthrowing Govt.(Lynch et al.,2016) and not doing enough to protect societies from harm.

According to ACAPS 2023, Australians don’t trust Tech. Companies with their personal information (OAIC,2023).

Disagreements

Mr. Burgess clearly mentioned what he is not asking, but his ask, that Tech. companies should do more is vague and requires more explanation

Responsibly Weaponizing the technology (Kershaw, 2024) is a questionable comment.

The ability of technology companies to take proactive measures to identify and inform about adversaries (Kershaw, 2024). AFP should provide clear guidelines i.e. what is required from Tech. companies. Accountability of these tasks must remain with security agencies

Prevention has become a non-negotiable requirement (Kershaw, 2024). ASIO and AFP should work on prevention or define clear guidelines for Tech

There was no mention of problems of the new future, Quantum computing (Shor’s Algorithm) is expected to quickly break all encryption systems currently being used to secure internet traffic against interception. Such computers are expected to be developed by 2030. (Parker, 2023). Planning for these advancements should start now

Conclusions

ASIO & AFP made valid and timely requests that Tech. Companies should support lawful requests to decrypt targeted (suspected) information to protect everyone. This aligns with the ethical framework of utilitarianism

Their request falls within current Australian laws. Privacy & Freedom of expression are not Absolute laws, it is well documented by OAIC, AGD and the International Convention on Civil and Political Rights (UN,1966).

Concerns raised by ASIO and AFP regarding the use of AI & Technologies, Child Abuse material, were fact-checked and found to be valid, similar concerns were raised by WEF.

Philosophical, Social and Legal perspectives support this view that laws and control structures must be in place, unbound liberty can be dangerous.

Data suggests that Australians will accept these requests from ASIO & AFP allowing them access to targeted Suspects. Australians already feel comfortable with Federal Govt. agencies handling personal information.

Risks shared by ASIO and AFP are real and alarming as per numbers and statistics.

ASIO and AFP’s Job is not easy, they have to go through tough processes, approvals and red-taping to provide us Security we need. Tech. Companies should respect the rule of law and support agencies, in the age of technological advancements security should not be at risk (Kershaw, 2024).

The Bottom line is: This is an ask to cooperate, not to suppress rights. This is an ask to have the capability to investigate targeted suspects, not everyone has to forgo their privacy. It should be accepted, this is a right and ethical thing to do.

References

World Economic Forum, (2024). Global Risks Report. Retrieved from https://www.weforum.org/publications/global-risks-report-2024/

O’Neil, O (2021). Oxford Handbook of Cyber Security, Ethical Standards and Communication Technologies. Retrieved from https://academic-oup-com.ezproxy.usc.edu.au/edited-volume/41360/chapter/352559236?login=true&token=eyJhbGciOiJub25lIn0.eyJleHAiOjE3MTg3NjI2ODQsImp0aSI6ImExZTdiYTM5LWI3ZDQtNDViYi1hYThmLTI4MWU3MzgwZTFlYiJ9.

OAIC, (2024a). What is Privacy? Retrieved from https://www.oaic.gov.au/privacy/your-privacy-rights/your-personal-information/what-is-privacy#:~:text=Your%20right%20to%20privacy%20isn,rules%20apply%20in%20these%20situations.

Attorny-General’s Department, (2024). Absolute Rights retrieved from https://www.ag.gov.au/rights-and-protections/human-rights-and-anti-discrimination/human-rights-scrutiny/public-sector-guidance-sheets/absolute-rights

Open Access Government, (2020). Cybersecurity and the tragedy of internet commons retrieved from https://www.openaccessgovernment.org/regulation-internet-commons/82715/

Burgess, M. (2024, April 24). Director-General's National Press Club Address [Transcript]. Retrieved from https://www.asio.gov.au/director-generals-national-press-club-address

Browne, K (2024). Introduction to Social Contract Theory. Retrieved from https://www2.econ.iastate.edu/classes/econ362/hallam/Readings/SocialContractHelium.pdf

Stanford Encyclopedia of Philosophy, (2018). The Common Good. Retrieved from https://plato.stanford.edu/entries/common-good/

Spiliakos, A (2019). Tragedy of the Commons: What It is and 5 Examples. Retrieved from https://online.hbs.edu/blog/post/tragedy-of-the-commons-impact-on-sustainability-issues

Rusling, L (2024). Introduction to Social Contract Theory2. Retrieved from https://www2.econ.iastate.edu/classes/econ362/hallam/Readings/SocialContractHelium.pdf

Hammurabi (1755-1750 BC). Code of Hammurabi. Retrieved from https://en.wikipedia.org/wiki/Code_of_Hammurabi#:~:text=The%20Code%20of%20Hammurabi%20is,the%20First%20Dynasty%20of%20Babylon.

Bond, R., Fariss, C., Jones,J. , Kramer,A.,Marlow, C. , Settle, J., Fowler, J, (2012). A 61-million-person experiment in social influence and political mobilization retrieved from https://www.nature.com/articles/nature11421

By Lynch, M., DFreelon, D., Aday, S., (2016). How Social Media Undermined Egypt’s Democratic Transition. Retrieved from https://carnegieendowment.org/posts/2016/10/how-social-media-undermined-egypts-democratic-transition?lang=en

Office of Australian Information Commissioner, (2023). Australian Community Attitudes to Privacy Survey 2023. Retrieved from https://www.oaic.gov.au/engage-with-us/research-and-training-resources/research/australian-community-attitudes-to-privacy-survey/australian-community-attitudes-to-privacy-survey-2023

ACCCE, (2024). Research and Statistics. Retrieved from https://www.accce.gov.au/resources/research-and-statistics

Statista, (2024). Number of cybercrime reports made to the Australian Cyber Security Centre in Australia from financial year 2020 to financial year 2023. Retrieved from https://www.statista.com/statistics/1343645/australia-number-of-cybercrimes-reports-acsc/

9News, (2024). Three people charged after a 3D printed firearm found near P erth. Retrieved fromhttps://www.9news.com.au/national/3d-printed-firearms-western-australia-police-men-and-woman-charged/a4259366-f0f5-49f7-adf4-ca37e0552673

The West, (2024). 3D Printed firearm components found in Coogee home. Retrieved fromhttps://thewest.com.au/news/police/detectives-seize-3d-printed-firearms-from-coogee-home-and-during-glen-iris-traffic-stop--c-13689457

ACT Police News, (2023) Police siezed 3D printed firearm in ACT Garran. Retrieved fromhttps://www.policenews.act.gov.au/news/media-releases/police-seize-3d-printed-firearms-and-ammunition

News.com, (2022)Five 3D Printed Guns found in Melbourne Home. Retrieved fromhttps://www.news.com.au/national/victoria/crime/police-have-seized-multiple-3d-printed-guns-during-a-raid-in-melbourne/news-story/a6de5264d1c9deafe8d658a6209e189b

Perth Now, (2022). Perth teen printed Semi-automatic Rifle with 3D Printer. Retrieved fromhttps://www.perthnow.com.au/news/crime/semi-automatic-assault-rifle-manufactured-with-3d-printer-seized-by-police-during-raid-on-bayswater-home--c-7149056

The Senior, (2021). Loaded home made gun sized by NSW Police, south of Sydney Retrieved fromhttps://www.thesenior.com.au/story/7079885/loaded-homemade-gun-seized-by-nsw-police/

ABC News, (2017). 3D Printed Guns found in Sydney Retrieved from https://www.abc.net.au/news/2017-02-28/3d-printed-guns-found-in-sydney,-man-charged-for-manufacture/8312382

Daily Telegraph, (2014). Police raided Suburban Gun-making factory Retrieved fromhttps://www.dailytelegraph.com.au/news/nsw/police-raid-on-suburban-gunmaking-factory/news-story/c57a0b9731659e58bb54318a8d6f05ad

Sydney Morning Herald, (2014). Man found with home made gun in Sydney. Retrieved fromhttps://www.smh.com.au/national/nsw/man-found-with-homemade-gun-at-sydney-police-station-20140509-zr7z3.htm

Australian Nation Security, (2024). Current National Terrorism Threat Level. Retr ie ved fromhttps://www.nationalsecurity.gov.au/national-threat-level/current-national-terrorism-threat-level

Australian Signals Directorate, (2023). ASD Cyber Threat Report 2022-2023. Retrieved from https://www.cyber.gov.au/about-us/view-all-content/reports-and-statistics/asd-cyber-threat-report-july-2022-june-2023

United Nations, (1966). International Covenant on Civil and Political Rights. Retrieved from https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights

Parker, E., (2023). When a Quantum Computer Is Able to Break Our Encryption, It Won't Be a Secret. Retrieved from. https://www.rand.org/pubs/commentary/2023/09/when-a-quantum-computer-is-able-to-break-our-encryption.html