CHAPTER 2: PRIVACY
not be assumed that privacy norms which have moved so rapidly in recent years are
now immutable, or that the direction of travel will not reverse. Indeed, Facebook itself
in December 2014 sent an update to users promoting its new “Privacy Basics” service,
noting that “protecting people’s information and providing meaningful privacy controls
are at the core of everything we do”.84
2.41.
Secondly, it is clear that most people do care about their privacy, however defined,
and take steps to preserve it online.85 If those steps are ineffective, consumer
protection law should be doing more to ensure that only informed consent to the
sharing of their data will suffice.86 Moreover, it is false to assume that there is one
standard of privacy that attaches to all electronic communications: people treat
different types of information as entailing different levels of privacy (2.26 above), and
users of various platforms are mindful of the extent and degree to which that
information is available to others.87
2.42.
Thirdly, the trend away from privacy is counterbalanced by the spread of encryption.
Companies make a selling point out of assuring their customers that (as in the case
of modern iPhones), not even the provider of the phone will be able to decrypt its
contents.88
2.43.
Finally, the distinction between the activities of service providers and those of the
state, though sometimes elusive, is nonetheless real. The state has a duty to protect
its citizens. Pursuant to that duty, it asserts the right to intercept communications or
collect data without consent, and to use that information for the purpose of depriving
persons of their liberty. These powers are asserted, furthermore, even in relation to
people in respect of whom there is no reasonable suspicion that they have committed
any crime.
2.44.
Recent changes in privacy norms are not without relevance: they may for example
have a bearing on whether there is a reasonable expectation of privacy in a particular
type of data at a particular time. They do not however amount to any sort of argument
for dispensing with constraints on the government’s collection or use of data. Indeed
as more of our lives are lived online, and as more and more personal information can
be deduced from our electronic footprint, the arguments for strict legal controls on the
power of the state become if anything more compelling.
84
85
86
87
88
Facebook update, 20 December 2014.
See Big Brother Watch/ComRes, Global Attitudes to privacy Online, October 2013 (“BBW/ComRes”).
See further 8.85-8.88 below. In the BBW/ComRes survey, 65% of consumers believed that national
regulators should do more to force Google to comply with regulations on online privacy and data
protection.
See A. Watts, “A Teenager’s View on Social Media”, 2 January 2015.
See the Privacy section on the Apple website: https://www.apple.com/privacy/government-informationrequests/.
38